UNIVERSITY 

OF  CALIFORNIA 

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LIBRARY 


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University  of  Cincinnati  Examinations 


PAPERS  USED  AT  THE 


ANNUAL  EXAMINATIONS 


IN  THE  FIRST,  SECOND 
AND  THIRD  YEARS  OF 


THE  LAW  DEPARTMENT 


OF   THE 


UNIVERSITY  OF  CINCINNATI 

r 
JUNE,  1899. 


W.  H.  ANDERSON  &  Co.,  LAW  BOOK  SELLERS 
1899 


T 


THIRD  YEAR. 


DOMESTIC  RELATIONS  AND  THE 
LAW  OF  PERSONS. 

Hr.  James. 


I. 

Miss  A  filed  suit  against  Mr.  B,  alleging  that  he  had  prom- 
ised to  marry  her,  and  that  in  consideration  thereof  she  had 
promised  to  marry  him,  and  that  she  had  waited  a  reasonable 
time  and  he  had  declined  to  marry  her.  General  issue.  On  the 
trial  she  offered  to  prove  (i)  that  he  had  been  in  her  constant 
society;  (2)  that  he  had  frequently  visited  her;  (3)  that  he 
took  her  driving;  (4)  that  he  continued  his  attentions  to  her  for 
two  years;  and  (5)  that  plaintiff  gave  birth  to  a  child  of  which 
he  was  the  father.  The  court  excluded  the  evidence  and  plaintiff 
excepted.  No  witness  testified  to  an  express  promise  to  marry. 
There  was  a  verdict  for  the  defendant  and  Miss  A  prosecuted 
error. 

Should  the  judgment  be  affirmed  or  reversed?  Give  reasons 
for  your  answer. 

II. 

Mr.  B  promised  to  marry  Miss  A,  and  Miss  A  in  consideration 
thereof  promised  to  marry  Mr.  B.  Thereafter  they  had  sexual 
intercourse  and  in  due  course  of  time  a  child  was  born.  Miss  A 
claimed  that  she  was  Mrs.  B  and  that  Mr.  B  was  her  husband. 
B  declined  to  support  her.  She  filed  suit  for  divorce  and  alimony 
entitled  the  case  Mrs.  B  (maiden  name  Miss  A)  against  Mr.  B, 
basing  her  case  on  the  ground  of  gross  neglect  of  duty.  Gen- 
eral issue.  On  the  trial  the  above  facts  were  proven. 

Should  judgment  be  given  for  plaintiff  or  defendant?  Give 
reasons  for  your  answer. 

III. 

Mr.  B  married  Miss  A  January  i,  1860,  and  M  and  N  were 
born  of  the  marriage.  B  then  deserted  his  wife,  went  to  distant 


1'  I.\\V     Dl.|-\UTMI   N  T    ill-    Till-     r.MVI.KSITY    (il      ClMINNATI. 

parts  and  represented  himself  as  unmarried,  and  on  July  i,  1X70, 
married  Miss  C.  who  was  ignorant  of  the  marriage  of  Mr.  H  to 
Mi>s  A.  On  July  i,  187  i,  a  child  named  O  was  born.  On  July 
i,  1X72,  Mrs.  H  (whose  maiden  name  had  been  Miss  A)  died. 
On  July  i,  1873,  a  second  child  named  P  was  born.  Mr.  B  died 
July  i ,  isso,  intestate,  sei/.ed  in  fee  simple  of  a  large  tract  of  land. 
From  the  time  of  the  marriage  of  Mr.  B  to  Miss  C  in  1X70  down 
to  Mr.  B's  death  in  1880  they  lived  as  and  were  reputed  hus- 
band and  wife.  Mrs.  B  (whose  maiden  name  had  been  Miss  C) 
did  not  know  of  the  death  of  Mrs.  B  (who  had  l>een  Miss  A). 
Mr.  H  knew  of  the  death  a  few  days  after  it  occurred. 

Who  were  Mr.  B's  heirs?     Give  reason  for  your  answer. 

IV. 

Miss  A  committed  an  assault  on  Miss  M  January  i,  1809. 
On  July  i,  1810,  being  then  possessed  of  a  promissory  note  for 
$1,000  against  Mr.  N  she  married  Mr.  B.  On  August  i,  iSio. 
Miss  M  filed  suit  against  Mr.  and  Mrs.  B  for  damages  for  the 
assault.  On  November  i,  1810,  Miss  M  obtained  judgment 
against  Mr.  and  Mrs.  B  for  $2,500.  On  November  2,  1810,  Mr**. 
B  died.  Miss  M  then  levied  execution  on  all  the  goods  and 
chattels  of  Mr.  B,  valued  at  $500,  and  presented  a  claim  against 
the  administrator  of  Mrs.  B. 

From  whom  is  she  legally  entitled  to  collect  said  judgment? 
Give  reasons  for  your  answer. 

V. 

Mr.  B,  an  unmarried  man,  purchased  the  fee  simple  of  a  tract 
of  land  from  Mr.  A  for  $10,000  January  i,  1890,  paying  $5,000 
in  cash  and  securing  the  balance  by  a  purchase- money  mortgage. 
February  i,  1890,  he  married.  March  i,  1890,  Mr.  C  obtained 
judgment  against  Mr.  B  for  $2,000  and  levied  execution  on  the 
land.  April  i,  1890,  Mr.  B  mortgaged  the  land  to  Mr.  D  for 
$3,000,  and  Mrs.  B  joined  in  said  mortgage  and  released  her 
right  of  dower.  On  July  i,  1890,  Mr.  A  filed  a  bill  in  equity  to 
foreclose  the  mortgage  and  marshal!  liens,  making  Mr.  B,  Mrs. 
B,  Mr.  C,  and  Mr.  D  parties  defendants.  On  August  i,  a  decree 


ANNUAL  EXAMINATIONS,  1898-99.  :! 

for  sale  was  entered,  and  on  September   i,  1890,  the  land  was 
sold  for  $7,500. 

To  whom  and  in  what  order  shall  the  fund  be  distributed? 
Give  reasons  for  your  answer. 

VI. 

Mr.  B  married  Miss  A  in  Ohio  where  both  were  domiciled. 
Mr.  B,  while  in  Denver,  Colorado,  on  a  business  trip,  committed 
adultery.  The  statutes  of  Colorado  conferred  jurisdiction  on  the 
courts  of  that  State  to  grant  divorces  for  adultery  committed  in 
Colorado,  irrespective  of  the  domicile  of  the  husband  and  wife. 
Mrs.  B  forwarded,  by  mail,  to  the  clerk  of  the  Common  Pleas 
Court  in  Denver,  Colorado,  a  petition  for  divorce  on  the  ground 
of  adultery  committed  in  Denver.  Mr.  B,  being  in  Denver  on  a 
business  trip,  was  served  with  summons,  and  defaulted  for  answer. 
Upon  due  and  proper  evidence,  the  court  divorced  Mr.  and  Mrs. 
B  from  the  bonds  of  matrimony.  Mr.  B  thereafter,  in  Ohio, 
married  Miss  C,  and  was  indicted  and  put  on  trial  for  bigamy 
In  support  of  his  defense  he  offered  in  evidence  the  Colorado  law 
and  the  facts  aforesaid  and  a  duly  certified  copy  of  the  proceed- 
ings in  the  Colorado  Court.  The  trial  court  declined  to  admit 
the  proceedings  in  the  Colorado  Court,  and  Mr.  B  took  an  excep- 
tion. After  conviction  and  sentence,  he  prosecuted  error  to  the 
Supreme  Court. 

Should  the  judgment  be  affirmed  or  reversed?  Give  reasons 
for  your  answer. 

VII. 

Mr.  A,  being  a  minor  aged  19  years,  purchased  from  Mr.  B 
( i)  ten  acres  of  land,  (2)  a  plough,  (3)  a  team  of  horses,  and  (4) 
ten  bushels  of  oats,  for  $1,000  in  cash.  The  oats  were  consumed 
during  the  following  three  months  by  the  team,  and  before  reach- 
ing 2 1  years  of  age  Mr.  A  sold  the  plough  and  one  of  the  horses 
for  $150  cash,  lost  the  money  betting  on  a  horse  race,  and  in  a 
moment  of  anger  so  brutally  beat  the  other  horse  that  it  died. 
One  year  after  arriving  at  age,  he  called  on  Mr.  B  and  tendered 
him  a  deed  for  the  land  and  demanded  a  return  of  the  $i  ,000. 


^  I.AU      III   I-AKI  Ml    NT    ..I      Till      INIM.UMTY    OK    CINCINNATI. 

Mr.  H  declined  and  Mr.  A  entered  suit  against  H  for  the  $1,000 

and  six  JKT  cent  interest  for  three  years. 

On  the  foregoing  facts,  for  whom  should  judgment  IK.'  given  ' 
(five  reason^  for  y<»nr  answer. 

VIII. 

Mr.  A,  a  minor  aged  19  years,  hired  a  horse  and  buggy  from 
Mr.  H  (the  owner  of  a  livery  stable)  to  drive  to  Glendale  and 
return.  Instead  Mr.  A  drove  to  Middletown  and  back,  and  vio- 
lently whipped  the  horse  in  order  to  reach  home  before  9  o'clock 
at  night.  The  horse,  which  was  valued  at  $200,  died  as  a  result 
of  the  over-driving  and  whipping.  Mr.  B  sued  Mr.  A  for  the 
value  of  the  horse.  Mr.  A  set  up  infancy  as  a  defense,  and  the 
alM)ve  facts  appeared  in  evidence. 

For  whom  should  judgment  be  given?  Give  reasons  for  your 
answer. 

IX. 

Mr.  A  sold  Mr.  B  stock  of  groceries  for  $1,000,  for  which  Mr. 
B  gave  his  promissory  note.  Upon  the  note  being  dishonored, 
Mr.  A  sued  Mr.  B,  and  for  answer  defendant  admitted  that  he  had 
signed  the  note,  but  alleged  that  at  the  time  of  signing  the  note 
he  was  insane  and  of  not  sufficient  mental  capacity  to  understand 
ordinary  business  transactions,  and  that  he  had  not  understood 
and  was  incapable  of  understanding  the  transaction.  To  this 
answer  plaintiff  demurred. 

Should  the  demurrer  be  sustained  or  overruled  ?  Give  reas.  >n^ 
for  your  answer. 

X. 

Mr.  A,  domiciled  in  Ohio,  died  testate,  and  by  his  will  devised 
100  acres  of  Ohio  land,  and  bequeathed  a  stock  of  groceries, 
located  in  a  store  in  Cincinnati,  to  his  friend  Mr.  B,  who  was 
domiciled  in,  a  resident  of  London,  England,  and  a  subject  of 
the  Queen.  The  children  of  A  claimed  the  real  and  persona! 
property  so  devised  and  l>equeathed. 

What  right,  if  any,  did  Mr.  B  have  to  the  land  devised  and 
stock  of  groceries  bequeathed  ?  Give  reasons  for  your  answer. 


ANNUAL  EXAMINATIONS,  ISJKS-'.M).  5 

CONSTITUTION  OF  OHIO. 

I. 

A  bill  was  introduced  in  the  Senate  of  Ohio  on  January  i , 
1897,  which  had  no  title  and  was  numbered  "S.  B.  No.  5,"  and 
began  with  the  words  "  Be  it  enacted  by  the  People  of  the  Common- 
wealth of  Ohio,  etc.'1  It  was  read  once  and  received  the  unani- 
mous vote  of  all  the  Senators  elected  to  the  Senate.  The  Senate 
Journal  stated  that  "S.  B.  No.  5  was  introduced  by  Senator 
Smith,  and  on  his  motion  the  same  was  declared  by  the  President 
of  the  Senate  to  have  been  duly  passed."  The  bill  then  went  to 
the  House,  and  was  read  upon  three  different  days,  and  after  the 
third  reading  was  put  upon  its  passage,  and  but  twenty  out  of 
the  100  representatives  voted  for  it.  The  Journal  of  the  House 
showed  that  eighty  had  voted  for  it.  The  bill  was  then  duly 
engrossed  and  authenticated  by  the  signatures  of  the  Speaker  of 
the  House  and  President  of  the  Senate. 

Did  or  did  not  that  bill  become  a  law  ?  Give  reasons  for  your 
answer. 

II. 

The  General  Assembly  passed  a  law  giving  sub-contractors 
the  right  to  take  a  lien  on  the  land  of  the  owner. 

Is  this  statute  constitutional  ?     Give  reasons  for  your  answer. 

III. 

The  General  Assembly  of  Ohio  passed  a  law  punishing  a  per- 
son who  should  thereafter  erect  a  building  more  than  two  stories 
high  in  cities  of  the  first  grade  of  the  first  class.  Mr.  A,  who 
was  indicted  for  a  violation  of  this  statute,  demurred  thereto. 

Should  the  demurrer  be  sustained  or  overruled?  Give  reasons 
for  your  answer. 

IV. 

The  General  Assembly  of  Ohio  passed  a  law  providing  that 
corporations  could  be  created  by  filing  articles  of  incorporation 
with  the  Secretary  of  State  and  paying  a  fee  therefor.  The 
law  made  no  reference  to  the  individual  liability  of  stockholders. 


\.\\\   DKI-AKT.MKNT  01-  Tin.  TNIVLKSIIA   ..i    CINCINNATI. 

A,  B,  C,  D,  and  K  organized  The  Ohio  Boat  Company 
under  this  statute  with  a  capital  stock  of  $5,000,  and  A,  H.  C. 
D,  and  K  each  subscribed  and  paid  for  $1,000  thereof.  Debts 
to  the  amount  of  $10,000  were  contracted  in  the  name  of  said 
company  and  the  company  failed  with  no  assets.  The  creditors 
sued  Messrs.  A,  B,  C,  D,  and  E  as  partners.  They  set  up  the 
foregoing  facts  as  a  defense.  Plaintiffs  demurred  to  this  answer. 
For  whom  should  judgment  be  given?  Give  reasons  for 
your  answer. 

V. 

The  General  Assembly  of  Ohio  passed  a  law  providing  that 
the  Mayors  of  Cities,  Villages,  and  Hamlets  should  appoint  one 
inspector  of  gas  meters  for  each  10,000  inhabitants,  and  that 
each  municipality  should  have  at  least  one  inspector,  and  that 
their  compensation  should  be  paid  by  the  gas  companies  whose 
meters  were  inspected,  and  that  if  not  paid  by  the  gas  com- 
panies their  compensation  should  be  advanced  by  the  municipality 
and  recovered  by  the  municipalities  in  an  action  for  debt.  The 
City  of  Zion  appointed  two  inspectors  and  the  Zion  Gas  Com- 
pany declined  to  pay  their  compensation.  The  City  of  Zion 
advanced  the  money  and  sued  the  Zion  Gas  Company  to  recover 
it.  The  defendant  demurred  to  the  petition. 

For  whom  should  judgment  be  given?  Give  reason  for  your 
answer. 


STATUTORY  LAW. 

I. 

On  January  i,  1895,  the  General  Assembly  of  Ohio  enacted 
a  statute  punishing  murder  by  imprisonment  in  the  penitentiary 
for  life.  On  February  i,  1895,  Mr.  A  killed  Mr.  B  under  such 
circumstances  as  amounted  to  the  crime  of  murder.  On  March 
i,  1895,  Mr.  A  was  indicted  for  murder;  on  April  i,  1895,  he 
was  put  on  trial,  and  on  April  15,  1895,  the  jury  returned  a 
verdict  of  guilty.  On  April  16,  1895,  a  motion  for  a  new  trial 
was  filed,  argued,  and  submitted.  On  April  20,  1895,  the  Gen- 
eral Assembly  of  Ohio  enacted  a  statute  punishing  murder  by 


ANNUAL  EXAMINATIONS,  KS'JS-'.tO.  7 

hanging.  On  April  22,  1895,  the  court  overruled  the  motion 
for  a  new  trial  and  sentenced  Mr.  A  to  imprisonment  for  life  in 
the  penitentiary.  Mr.  A  thereupon  prosecuted  error  to  the 
Supreme  Court. 

Should  the  judgment  be  affirmed  or  reversed?  Give  the 
common-law  rule,  and  if  this  has  been  changed  give  the  statu- 
tory rule.  Give  the  reasons  for  your  answer. 

II. 

On  January  i,  1890,  the  General  Assembly  of  Ohio  enacted  a 
statute  rendering  inadmissible  the  opinion  of  a  witness  based  on 
comparison  of  handwriting.  On  July  i,  1895,  Mr.  A  was  indicted 
for  forging  on  June  i,  1895,  the  signature  of  Mr.  B.  On  October 
i,  1895,  the  General  Assembly  of  Ohio  enacted  a  statute  repealing 
the  statute  of  January  i,  1890,  and  enacted  that  such  opinion 
should  be  admissible  in  evidence.  On  November  i,  1895,  Mr.  A 
was  put  on  trial.  The  State,  over  the  objection  of  the  defendant, 
offered  in  evidence  the  opinion  of  an  expert,  based  on  comparison 
of  handwriting,  that  the  signature  "  B  "  was  in  the  handwriting 
of.  Mr.  A,  and  A  was  convicted.  Thereupon  error  was  pros- 
ecuted to  the  Supreme  Court. 

Should  the  judgment  be  affirmed  or  reversed?  What  was  the 
common-law  rule?  What  is  the  statutory  rule?  Compare  the 
rules  and  give  reasons  for  your  answer. 

III. 

A,  B,  C,  D,  and  E  filed  articles  for  the  incorporation  of  The 
Cincinnati  Wagon  Company,  with  an  authorized  capital  stock  of 
$5,000,  and  a  certified  copy  was  duly  issued  by  the  Secretary  of 
State.  Each  subscribed  for  $1,000  of  said  stock,  but  paid  noth- 
ing therefor,  and  immediately  elected  a*  Board  of  Directors,  and 
the  directors  elected  officers.  An  indebtedness  of  $10,000  was 
contracted,  and  the  company  failed  without  assets.  The  cred- 
itors filed  suit  against  A,  B,  C,  D,  and  E,  as  partners.  The  de- 
fendants set  up  the  foregoing  facts  as  a  defense,  and  the  plaintiff 
demurred  to  the  answer. 

For  whom  should  j  udgment  be  given  ?  Give  reasons  for  your 
answer. 


x  LAW  DEPARTMENT  OK  THK  UNIVERSITY  OF  CINCINNATI. 

IV. 

A  was  tin.  father  of  three  sons,  B,  C,  and  D.  M  was  the- 
lather  of  three  children,  two  sons,  N  and  O,  and  a  daughter,  P. 
H  married  P,  and  had  a  son,  Q.  Q  married,  and  had  a  son,  R. 
C  married,  and  had  a  son,  S.  B  purchased  a  tract  of  land  in  fee 
simple.  The  following  persons  then  died  intestate  in  the  fol- 
lowing order:  (i)  B,  (2)  C,  (3)  Q,  and  (4)  R. 

Who  would  have  inherited  the  land  at  common  law  ?  Who 
would  inherit  under  the  Ohio  statutes  ?  Give  reasons  for  your 
answer. 

V. 

Mrs.  M,  an  old  lady  of  large  wealth  in  real  estate  and  mother 
of  grown  sons,  married  Mr.  N,  an  old  gentleman  of  no  means,  and 
a  teacher  in  the  public  schools  for  twenty-five  years,  there  being 
an  understanding  that  Mr.  N  should  resign  his  position  as  teacher 
and  take  up  his  home  with  his  wife  on  her  landed  estates.  The 
grown  sons  were  displeased  with  the  union,  and  so  worked  on 
their  mother  that  she  finally  consented  to  allow  the  sons  to  eject 
Mr.  N  from  the  land.  Mr.  N  filed  a  bill  in  equity  against  Mrs. 
N,  praying  for  reasonable  support  out  of  the  lands.  She 
demurred  to  the  bill. 

For  whom  should  judgment  be  given?  Give  reasons  for  your 
answer  and  state  the  common  law  and  statutory  rules. 


THIRD   YEAR. 


CODE  PLEADING. 

fir.  Hepburn. 


I. 

a.  When  and  where  was  the  first    American   code   of  civil 
procedure  enacted? 

b.  When  was  the  Ohio  code  of  civil  procedure  enacted? 

c.  Name  the  code  States. 

II. 

a.  What  are  the  English  Judicature  Acts? 

b.  When  did  they  first  go  into  effect? 

c.  What  following  have  they  outside  England? 

III. 

a.  What  is  the  Federal  Practice  Conformity  Act? 

b.  To  what  cases  does  it  apply? 

IV. 

Compare  briefly  the  American  and  the  English  system  of  code 
pleading  with  respect  — 

a.  To  the  creation  of  one  form  of  action. 

b.  To  the  joinder  of  causes  of  action. 

c.  To  the  use  of  the  general  denial. 

V. 

Action  under  the  code  for  recovery  of  land  in  Ohio.  Petition 
describes  the  land,  states  that  plaintiff  has  a  legal  title  therein 
and  is  entitled  to  possession  thereof,  and  alleges  that  the  defend- 
ant unlawfully  keeps  him  out  of  possession.  Answer  alleges  that 
defendant  is  in  possession  as  tenant  of  H ;  that  the  land  was  in- 
cluded in  a  purchase  of  the  adjacent  premises  by  H  from  plain- 


10  l.\W    IM.I'VKTMI  NT   OK   TIIK    f.NIVKKSITY   Ol     ClMINNATl. 

tiff's  grantors,  prior  to  plaintilT's  grant;    that  the  particular  lot 
in  controversy  was  omitted    from  the  description  in  the  deed  to 

11  through  the  mutual  mistake  of  the  parties  to  the  deed ;    and, 
in  effect,  that  defendant's  lessor  was  entitled  in  equity,  as  against 
plaintiff  and  his  grantor,  to  a  conveyance  of  the  lot.     Demurrer 
to  answer,  on  the  ground  that  it  is  insufficient  in  law,  on  its  face. 

a.  Shall  the  demurrer  he  sustained?     Your  reasons. 

b.  Frame  the  proper  journal  entry. 

VI. 

In  an  action  against  the  guardian  of  two  minors,  the  petition, 
having  alleged  in  due  form  the  appointment  of  the  guardian  and 
his  acceptance,  averred  also 

"That  said  dctVndunl,  as  such  guardian,  is  indd>U-d  to  plaintiff 
in  the  sum  of  $500,  for  keeping,  hoarding,  and  clothing  his  said 
wards  from  March  2,  iSgS,  to  March  I,  1899;  that  said  sum  is  wholly 
unpaid." 

Demurrer  for  want  of  facts  sufficient  to  constitute  a  cause 
of  action. 

Shall  the  demurrer  be  sustained?     Your  reasons. 

VII. 

A  &  B  having  a  claim  against  C  for  the  proceeds  of  certain 
notes  belonging  to  them  but  sold  by  him  and  not  accounted  for 
make  a  written  assignment,  absolute  and  valid  on  its  face,  of  all 
their  right,  title,  and  interest  in  these  notes  and  their  avails,  to 
M.  Nothing  was  paid  by  M  for  this  assignment;  and  it  is 
understood  between  him  and  his  assignors  that  whatever  he  re- 
covers from  C  shall  go  to  them,  and  that  if  the  action  against  C 
fails,  it  shall  cost  M  nothing. 

Can  M  maintain  an  action  in  his  own  name  alone  against  C 
on  this  claim  ?  Your  reasons. 

VIII. 

B  purchased  a  tract  of  land  from  A,  taking  a  deed  in  fee,  with 
covenants  of  seizin,  against  incumbrances,  and  of  general  war 
ranty.  B  paid  part  cash  and  gave  his  notes  for  the  balance.  The 


ANNUAL  EXAMINATIONS,  1898-99.  11 

deed  and  other  covenants  were  in  terms  to  and  with  B  in  his  own 
name  and  right;  but  in  fact  B  had  made  the  purchase  for  C,  who 
furnished  the  money  for  the  cash  payment  and  after  the  purchase 
assumed  B's  notes,  and  received  from  him  a  deed  to  the  land. 
Before  and  at  the  time  of  B's  purchase  from  A  the  land  was 
encumbered  by  two  outstanding  leases,  executed  by  A  to  X. 
There  was  no  formal  assignment  by  B  to  C  of  this  claim  for  breach 
of  covenant. 

Can  C,  suing  under  the  code,  maintain  an  action  in  his  own 
name  against  A  on  these  broken  covenants  ?  Your  reasons. 

IX. 

A  petition  set  up  two  causes  of  action,  one  upon  a  quantum 
meruit  and  one  upon  an  alleged  agreement  to  pay  a  stipulated 
sum,  for  certain  services  rendered  by  the  plaintiff  to  the  defendant 
in  threshing  a  given  quantity  of  wheat.  At  the  opening  of  the 
trial,  plaintiff's  counsel  stated  that  the  work  mentioned  in  both 
causes  was  the  same.  The  defendant  thereupon  moves  the  court 
to  require  plaintiff  to  elect  upon  which  cause  he  will  stand  in  the 
trial. 

Shall  the  motion  be  granted  ?     Your  reasons. 

X. 

A  complaint  sets  forth  a  copy  of  a  written  order  upon  the 
defendant  to  pay  plaintiff  $500  "out  of  the  money  to  be  realized 
from  the  sale  of  the  houses  at  Nos.  305  and  307  East  Forty-sixth 
Street,"  and  avers  that  thereafter  plaintiff  presented  the  order  to 
the  defendant;  that  he  accepted  it  and  paid  $100  upon  it ;  and' 
"  that  there  is  now  due  plaintiff,  on  said  order,  the  sum  of  $400." 
The  answer  admits  the  acceptance  of  the  order,  the  payment  of 
$100,  and  denies  each  and  every  other  allegation.  At  the  begin- 
ning of  the  trial,  defendant  moves  to  dismiss  the  complaint,  on 
the  ground  that  it  does  not  state  facts  sufficient  to  constitute  a 
cause  of  action. 

Shall  the  motion  be  granted  ?     Your  reasons. 

XI. 

In  an  action  against  a  railway  company,  to  recover  damages 
for  the  loss  of  plaintiff's  cow,  the  petition  averred: 


!•_'  I.\\\     !>I.I'\KTMI   NT  "I      Mil.    lNI\IKMT\     .»!      CINCINNATI. 

"That  the  defendant  by  its  agents  an<l  servants  did  run  ;in«l 
manage  one  of  its  engines  in  Mirh  a  Crossly  negligent  an<'  care- 
less in. mm  i  that  tlu-  same  ran  against  ami  o\i-r  ?-ai<l  cow  and 
killed  her." 

/>e inin -rcr  on  the  ground   that   the  petition   (in  the 
quoted )  did  not  state  facts  sufficient  to  constitute  a  cause  of  action. 
Shall  the  demurrer  be  sustained?     Your  reasons. 

XII. 

B,  having  suffered  loss  through  the  misconduct  in  office  of  a 
justice  of  the  peace,  brought  an  action  in  Ohio  on  his  official 
bond,  a  joint  obligation,  making  the  justice  and  all  his  sureties, 
X,  Y,  and  Z,  parties  defendant.  All  defendants  were  served. 
Judgment  by  default  was  rendered  against  X,  and  the  action  left 
to  proceed  against  Y  and  Z,  who  had  obtained  leave  to  plead. 
After  the  default  judgment,  but  at  the  same  term,  X  moved  for 
leave  to  plead,  but  was  refused. 

Was  there  error  in  this?     Your  reasons. 

XITI. 

Action  at  law,  brought  after  1872,  in  the  Federal  Courts  of 
Nebraska,  to  recover  certain  land  in  that  State.  Petition,  in  the 
form  required  by  the  code  of  Nebraska  for  like  causes  in  the  State 
courts,  but  with  additional  averments,  in  due  form,  that  plaintiff 
was  a  citizen  of  Wisconsin,  that  defendant  was  a  citizen  of 
Nebraska,  and  that  the  matters  in  controversy  exceeded  the  value 
of  $2,000,  exclusive  of  interest  and  costs.  Answer :  "  Defend- 
ant denies  each  and  every  allegation  in  said  petition  contained." 
Special  verdict,  finding  facts  bearing  on  the  merits  of  the  case, 
but  nothing  as  to  the  citizenship  of  the  parties.  Judgment  on 
the  special  verdict  for  plaintiff.  Defendant  sues  out  a  writ  of 
error. 

Shall  the  judgment  be  reversed?     Your  reasons. 

XIV. 

State  the  general  principle  governing  the  joinder  of  parties 
plaintiff? 


ANNUAL  EXAMINATIONS,  1898-99.  13 

XV. 

State  the  general  principle  governing  the  joinder  of  parties 
defendant  ? 

XVI. 

a.  When  may  a  cause  of  action  ex  contractu  be  joined  with  a 
cause  ex  dclicto  ? 

b.  When  may  an  equitable  cause  of  action  be  joined  with  a 
legal  cause  of  action  ? 

XVII. 

What  objection,  if  any,  can  be  made  to  the  following  answer 
( understood  to  be  complete  in  all  formal  respects)  ? 

"The  said  defendant  denies  all  the   material   allegations  of 
said  plaintiff  in  his  said  petition." 

XVIII. 

A  petition  avers  that  "  the  said  Seely  has  no  property  whereon 
to  levy."  The  answer  states  merely  that  "  these  defendants  do 
not  admit  that  said  Seely  has  no  property  whereon  to  levy." 

What  is  the  effect  of  this  answer?     Your  reasons. 

XIX. 

On  November  18,  1895,  A  B,  a  non-resident,  brought  suit  in 
the  court  of  a  justice  of  the  peace  in  Cincinnati  against  C  D. 
Judgment  for  plaintiff  on  December  12,  1895.  Defendant  appeals. 
In  the  court  above  there  was  a  general  denial,  a  jury  trial,  and 
verdict  and  judgment  for  defendant.  Plaintiff  goes  on  to  Circuit 
Court. 

Indicate  clearly  the  different  steps  and  pleadings  necessary  to 
be  taken,  and  when  they  should  be  taken,  in  the  course  of  such 
an  action,  from  its  beginning  in  the  justice's  court  to  its  termina- 
tion in  the  Circuit  Court. 

XX. 

On  January  8,  1896,  John  Doe  died,  leaving  a  last  will,  which 
named  Mary  Doe  as  his  executrix.  The  will  was  probated  and 


1  1  i.\\v  DKPAKTMKNT  OF  TUB  TNIVKKSITV  m-  CINCINNATI. 

Mary  Doe  qualified  on  February  20,  1896.  At  the  time  of  his 
death  John  Doe  owned  and  possessed  the  following  instru- 
ments: 

"$2,500.00  CINCINNATI,  February  5,  1892. 

On  or  Iwfore  February  5,  1893,  after  date,  I  promise  to  pay  to 
tin-  onk-r  of  Win.  Jones  $2,500.00,  payable  with  six  per  cent  in- 
terest from  date. 

Value  received.  RICHARD  Ron." 

[Endorsed]  "Received,  February  5,  1893,  $150.00,  interest 

one  year.     Win.  Jones." 

"Without  recourse  against  me.     Wm.  Jones." 

"$5,000.00  CINCINNATI,  January  25,  1895. 

On  demand,  after  John  Doe  has  fully  performed  all  the  condi- 
tions of  our  agreement  of  December  31,  1894,  I  promise  to  pay  him 
the  sum  of  $5,000.00.  RICHARD  Ron." 

The  agreement  referred  to  required  that  John  Doe  deliver  to 
Richard  Roe  on  or  before  January  10,  1895,  all  the  capital  stock, 
plant,  and  good  will  of  the  Enterprise  Manufacturing  Company. 
The  executrix  claims  that  John  Doe  performed  all  the  conditions 
on  his  part  to  be  performed  at  a  date  not  later  than  December 


Frame  a  petition   complete  in  all    respects  for  filing  in  the 
Common  Pleas  Court  of  Hamilton  County,  Ohio. 


THIRD  YEAR. 


COMMON  CARRIERS. 

Judge  Saylcr. 

( Unless,  otherwise  indicated,  questions  are  asked  with  reference  to  the 
common  law.) 

GIVK   REASONS   FOR   ANSVVKRB. 


I. 

Who  are  common  carriers  of  freight  ? 

II. 

a.  What  is  the  obligation  of  the  common  carrier  in  respect  to 
accepting  goods  offered  to  be  carried  ? 

b.  What  is  his  liability,  with  respect  to  goods  taken,  to  be 
carried  ? 

c.  When  does  the  liability  commence  and  when  end  ? 

III. 

What  is  a  bill  of  lading? 

a.  In  what  respect,  if  any,  is  it  a  receipt? 

b.  In  what  respect,  if  any,  is  it  a  contract? 

c.  May  any  of  its  terms  be  contradicted?     If  so,  by  whom? 

IV. 

A  shipped  on  a  vessel  of  a  common  carrier  a  lot  of  oats,  con- 
signed to  C.  The  master  signed  three  bills  of  lading  whereby  he 
acknowledged  to  have  received  on  board  10,000  bushels  of  oats, 
and  agreed  to  deliver  the  same  to  C  at  Baltimore,  or  to  his  assigns, 
he  or  they  paying  freight  at  the  rate  of  ten  cents  a  bushel.  A 
sent  to  C  by  mail  one  of  the  bills  of  lading  and  a  bill  for  the  oats, 
and  on  faith  of  this  bill  of  lading  C  remitted  to  A  the  amount  of 
the  bill  on  May  8th.  On  the  roth  of  May  the  vessel  arrived,  and 
on  delivery  of  the  oats  C  discovered  a  deficiency  of  about  1,000 
bushels  and  refused  to  pay  freight.  All  the  oats  received  by  the 
vessel  were  delivered.  Theownerof  the  vessel  suesC  for  the  freight. 

Can  C  recoup  in  this  action  any  part  of  his  loss?  Give  reason 
for  answer. 


Hi  I.\\v    Di.l'AKTMKNT  OK  THK   UNIVERSITY  OF  CINCINNATI. 

V. 

A  bought,  in  good  faith,  a  horse  from  B  and  paid  full  value. 
B  had  stolen  the  horse  from  C.  A  shipped  the  horse  from  Cin- 
cinnati to  Chicago  by  common  carrier  D,  to  be  delivered  to  E 
or  his  assigns,  he  or  they  paying  freight  to  the  amount  of  $10. 

C  brought  an  action  in  replevin  against  D  to  recover  posses- 
sion of  the  horse.  Can  C  recover  ?  Has  D  a  lien  on  the  horse 
for  freight  ?  Give  reason  for  answer. 

VI. 

A  shipped  100  barrels  of  flour  from  Cincinnati  to  Toronto  by 
B,  a  common  carrier,  and  collected  of  B  $100  (fifty  dollars  of  which 
was  an  amount  owing  by  the  consignee  to  A  for  storage  of  a  lot 
of  flour  previously  shipped,  and  the  remaining  fifty  dollars  was 
for  storage  of  the  flour  covered  by  this  shipment).  B  was  to 
carry  the  flour  to  Buffalo  and  there  deliver  to  C,  a  common  carrier, 
to  be  carried  to  Toronto  and  delivered  to  D  or  his  assigns,  he  or 
they  paying  freight  at  the  rate  of  one  dollar  per  barrel  and 
charges.  C  received  the  flour  and  paid  to  B  back  charges  amount- 
ing to  $150  (of  which  fifty  dollars  was  freight  from  Cincinnati 
to  Buffalo,  and  one  hundred  dollars  was  the  charges  paid  by  B). 

D  refused  to  pay  charges  and  C  holds  the  flour,  claiming  a 
lien.  For  what  amount,  if  any,  does  C  have  a  lien  on  the  flour? 

VII. 

A,  at  Cincinnati,  shipped  1,000  barrels  of  flour  by  the  railway 
of  C,  a  common  carrier,  consigned  to  B,  at  Cleveland.  C  issued 
duplicate  bills  of  lading  to  A,  and  A  sent  one  to  B.  The  flour 
arrived  at  Cleveland  and  was  held  in  the  cars  for  twelve  hours, 
and  then,  without  notice  of  its  arrival  being  given  to  B,  it  was 
placed  in  the  warehouse  of  C.  It  was  destroyed  by  fire  within 
the  next  twenty-four  hours  without  any  negligence  of  C. 

A  sues  C  for  the  value  of  the  flour.  Can  A  recover  ?  State 
reasons  for  your  answer. 

VIII. 

A  shipped  at  Cincinnati  ten  barrels  of  whisky  by  steamboat 
of  B,  consigned  to  C  at  Memphis,  to  be  delivered  to  C  or  to  his 


ANNUAL  EXAMINATIONS,  189K-1>9.  17 

assigns,  he  or  they  paying  freight,  at  the  rate  of  two  dollars  per 
barrel.  Duplicate  bills  of  lading  were  issued  to  A,  and  he  for- 
warded one  to  C.  C  transferred  the  bill  of  lading  to  D  for  value, 
and  the  whisky  was  delivered  to  D.  The  freight  was  not  paid  at 
the  time  of  delivery. 

a.  What  effect  did  the  delivery  have  on  the  lien  of  the  carrier 
for  freight? 

b.  The  carrier  wishes  to  sue  for  the  freight.     Against  whom 
can  he  mantain  an  action  ? 

IX. 

a.  Who  is  deemed  a  common  carrier  of  passengers? 

b.  Who  is  a  passenger  ? 

c.  What  is  the  obligation  of  a  common  carrier  to  a  passenger 
on  his  vehicle  ? 

d.  A  passenger  is  injured;    the  question  of  negligence  of  the 
carrier  is  at  issue.     On  whom  is  the  burden  to  show  negligence 
of  the  carrier  ? 

The  question  of  contributory  negligence  of  the  passenger  is 
also  at  issue.  On  whom  is  the  burden  to  show  such  contributory 
negligence  ? 

X. 

A,  a  passenger,  is  injured,  while  traveling  on  a  railroad  train, 
by  B,  a  fellow-passenger.  B  was  drunk  when  he  entered  the  car, 
and  was  boisterous  and  unruly.  A  requested  him  to  keep  quiet, 
at  which  B  became  abusive  toward  A.  The  conductor  directed 
B  to  take  his  seat  and  be  quiet.  B  sat  down  and  apparently 
went  to  sleep.  After  the  lapse  of  an  hour  A  started  to  alight, 
when  B  suddenly  jumped  up,  ran  after  him,  and  struck  him  in 
the  back,  doing  him  injury. 

A  sued  the  carrier  for  damages. 

The  Court  charged  the  jury  that  "the  defendants  were  bound 
to  exercise  the  utmost  vigilance  in  maintaining  order  and  guard- 
ing the  passengers  against  violence  from  whatever  source  arising." 

Was  there  error  in  the  charge? 


THIRD  YEAR. 

PARTNERSHIPS. 

Judge  Sayler. 


C.IVK    REASONS   FOR    ANSXVI  H  - 


I. 

a.  What  constitutes  a  partnership  under  the  cases  of  Grace 
vs.  Smith  (2  William  Black,  998),  and  Waugh  vs.  Carver  (2  H. 
Black,  235). 

b.  What  constitutes  a  partnership  under  Cox  et  al.  vs.  Hick- 
man  (8  House  of  Lord  Cases,  268)? 

c.  Which  doctrine  is  followed  in  Ohio? 

II. 

What  lien,  if  any,  does  the  partner,  or  the  creditor  of  the 
partnership,  have  on  the  assets  of  the  partnership? 

III. 

A  is  a  member  of  the  firm  of  A  B  &  Co. ,  and  also  a  member 
of  the  firm  of  A  X  &  Co.  The  firm  of  A  B  &  Co.  are  indebted 
to  A  X  &  Co.  in  the  sum  of  $1,000,  which  they  refuse  to  pay. 

What  action,  if  any,  can  the  firm  of  A  X  &  Co.  take  to  re- 
cover the  amount  of  its  claim?  Give  reason  for  answer. 

IV. 

A  and  B  arc  partners;  while  solvent,  A  makes  a  bona-fide 
sale  of  his  interest  in  the  partnership  to  B.  At  the  time  of  such 
sale  the  firm  is  indebted  in  the  sum  of  $10,000,  and  has  assets  in 
the  amount  of  $12,000.  B  has  no  assets  except  the  assets  of  the 
firm  so  held  and  purchased,  and  his  individual  debts  amount  to 
$20,000. 

B  assigns  for  the  benefit  of  creditors. 

How  would  you  distribute  the  assets? 


ANNUAL  EXAMINATIONS,  185)8-99.  19 

V. 

A  and  B  are  partners  in  the  manufacture  of  shoes.  X  applies 
to  A  for  an  accommodation  indorsement  by  the  firm  of  "A  &  B." 
X  draws  a  note  payable  to  the  order  of  Y  in  sixty  days  foi 
$1,000,  and  A,  without  the  knowledge  or  consent  of  B,  indorses 
it  with  the  firm  name  of  "A  &  B."  Thereupon  Y  indorses  it  and 
returns  it  to  X,  who  had  it  discounted  at  the  bank. 

The  note  is  not  paid,  and  the  bank  sues  "A  &  B." 

Can  it  recover?     Give  reason  for  answer. 

VI. 

An  order  of  attachment  on  a  debt  of  a  firm  of  partners  was 
issued  and  a  bank  was  garnisheed.  The  bank  answered  that  at 
the  time  of  the  serving  of  the  writ  it  was  not  indebted  to  the 
firm,  but  that  it  was  indebted  to  one  member  of  the  firm  in  the 
sum  of  $1,000,  which  had  been  subsequently  garnisheed  by  an 
individual  creditor  of  such  partner. 

Who  has  priority;  the  creditor  of  the  firm,  or  the  individual 
creditor  of  the  member  of  the  firm  ? 

VII. 

A  and  B  were  partners.  They  employed  an  expert  to  state 
an  account  between  them,  and  the  balance  was  ascertained  and 
announced  to  the  parties,  without  exception  to  it  by  either,  or 
any  express  promise  to  pay  by  B,  against  whom  a  balance  of 
$1,000  was  found. 

A  brought  suit  at  law  against  B  for  said  balance  of  $  1,000. 

Can  A  recover?     Give  reason  for  answer. 

VIII. 

A,  B  &  C  are  partners  doing  business  in  Ohio,  owning  a  piece 
of  real  estate  valued  at  $3,000,  purchased  with  partnership  funds 
for  partnership  purposes,  and  a  stock  in  trade  valued  at  $4,000, 
and  being  in  debt  in  the  amount  of  $5,000.  B  dies,  leaving  a 
widow  and  two  children.  X  is  appointed  the  administrator  of 
his  estate,  and  the  estate  is  insolvent. 

a.  The  widow  sues  to  have  dower  assigned  to  her  in  the  real 
estate.  Can  she  recover? 


•JO  !.\\v   I)I;I'\KTMIM    "i    nn.  I'MVI  KSITY  <>i    I/IMINNATI. 

b.  One  of  the  heirs  of  H  sues  for  a  partition  of  the  real 
estate:  Can  he  maintain  the  action? 

f.  State  fully  the  rights  of  A  and  C;  of  the  widow;  of  the 
heirs;  and  of  X,  the  administrator  of  the  estate  of  H,  in  the 
projxjrty  of  the  firm. 

IX. 

A  and  B  are  equal  partners  doing  business  in  Cincinnati.  A 
resides  in  Kentucky,  and  B  in  Ohio.  The  firm  has  assets  in  Cin- 
cinnati in  the  amount  of  $10,000.  M,  a  creditor  of  A  to  the 
amount  of  $4,000,  brings  a  suit  against  A  and  causes  an  attach- 
ment to  issue  for  the  purpose  of  subjecting  firm  assets,  or  the 
interest  of  A  in  the  firm  assets,  to  the  payment  of  his  claim. 

a.  On  what,  of  the  firm  assets,  may  the  attachment  t>e  levied? 

b.  If  a  sale  is  made  under  the  attachment,  what  is  sold? 

c.  There  are  firm  creditors  amounting  to  $6,000;   the  proceeds 
of  sale  under  the  attachment  amount  to  $4,000.      How  would 
yon  distribute  the  proceeds? 

d.  X  is  indebted  to  the  firm  of  "A  &  B"  in  the  amount  of 
$500  on  an  account.     Can  M  garnishee  the  money  in  the  hands 
of  X? 

X. 

A,  B,  C  and  I)  are  active  partners  doing  business  under  the 
firm  name  of  A,  B  &  Co.,  in  buying  and  selling  dry  goods.  As 
such  partners  they  have  for  years  bought  goods  from  X,  some- 
times on  credit,  and  sometimes  for  cash.  They  had  never  traded 
with  Y. 

I)  withdraws  from  the  firm,  and  A  B  and  C  continue  the  busi- 
ness under  the  old  firm  name. 

What  steps  must  they  take  in  order  that  D  cannot  be  held 
liable  as  a  partner  in  a  subsequent  transaction  by  the  succeeding 
firm  witli  X,  or  with  V? 

(•ive  reason  for  answer,  and  distinguish  between  X  and  Y. 


THIRD  YEAR. 


BILLS  AND  NOTES. 

Judge  Say  I  or. 


I. 

a.     What  is  a  bill  of  exchange? 

I).      What  are  the  formal  requisites  of  a  bill  of  exchange? 

II. 

a.  What  is  a  promissory  note? 

b.  What  are  the  formal  requisites  of  a  promissory  note? 

III. 

A,  the  payee  of  a  bill  of  exchange  payable  thirty  days  after 
sight,  presented  the  same  to  B,  the  drawee,  for  acceptance.  H 
accepted  the  same  and  thereupon  C  took  the  bill  bona  fide  for 
value  before  maturity.  The  bill  was  protested  for  non-payment, 
and  thereupon  C  sues  B  on  his  acceptance.  B  pleads  that  the 
signature  of  the  drawer  is  a  forgery.  C  demurs. 

How  would  you  decide  on  the  demurrer  ?  Give  reasons  for 
answer. 

IV. 

A  borrowed  the  sum  of  $1,000  from  B  and  executed  a  prom- 
issory note  to  him,  whereby  he  promised  to  pay  said  sum  to  B 
or  order  in  one  year  from  date.  The  note  was  stolen  from  B 
and  the  thief  forged  the  indorsement  of  B  and  transferred  the 
note  to  C,  who  took  it  bona  fide  for  value  before  maturity  ;  and 
C  transferred  it  to  D,  who  also  took  it  bona  fide  and  for  full 
value  before  maturity.  The  note  was  protested  for  non-payment 
and  notice  duly  given  to  indorsers. 

Can  D  maintain  an  action  for  the  amount  paid  by  him  on 
the  transfer  of  the  note  to  him  ?  Give  reasons  for  answer. 


i'j  ANNUAL  KXAMINATIONS 

V. 

A  i>  indebted  to  a  bank  on  a  note  for  $1,000  then  due.     A 

wi>hes  in  ^et  a  renewal  of  the  note,  and  for  that  i>urjx)se  draws 
a  new  note  for  $1,000  payable  to  the  order  of  the  bank,  and  H 
indorses  the  note  as  an  accommodation  indorser.  The  hank  has 
knowledge  that  the  new  note  is  drawn  and  indorsed  for  the 
pnr|X)se  of  renewing  the  old  note.  The  bank  allows  the  old 
note  to  stand  and  discounts  the  new  note  for  A  and  pays  the 
money  over  to  him.  A  fails  to  pay  the  note  at  maturity.  The 
bank  sues  H  on  his  indorsement. 
Can  it  recover?  Give  reason. 

VI. 

A  represents  to  B  that  he  wishes  to  borrow  a  sum  of  money 
between  $90  and  $Iio.  and  asks  him  to  indorse  a  note  for  the 
amount,  which  B  consents  to  do.  The  amount  cannot  then  be 
fixed,  and  a  note  is  drawn  by  A  payable  to  his  own  order  in 
sixty  days  from  date,  leaving  the  amount  blank,  to  be  filled  in 
by  A  at  not  over  $i  10,  and  B  indorses  it.  A,  without  the  knowl- 
edge or  consent  of  B,  fills  in  an  amount  of  $1,000  and  indorses 
it  over  to  a  bank  as  collateral  for  a  pre-existing  debt  of  $1,000 
then  due,  and  in  consideration  of  which  the  bank  then  extended 
the  time  of  payment  of  the  debt  then  due.  A  fails  to  pay  at 
maturity  and  the  bank  sues  B. 

Can  it  recover?     Give  reason. 

VII. 

A  was  the  agent  for  B  in  collecting  rents  on  receipts  usually 
signed  by  B.  B  was  infirm  and  relied  on  A  in  this  matter.  A 
presented  to  B  a  paper,  telling  him  it  was  a  receipt,  and  asked 
him  to  sign  it,  and  B  did  so.  The  paper  was  a  note  drawn  to 
the  order  of  A  for  $1,000,  payable  in  one  year  from  date.  A 
transferred  the  note  to  C  who  took  it  bona  fide  before  maturity 
for  value.  The  note  not  being  paid  C  sued  B  on  it. 

Can  C  recover?     Give  reason. 

VIII. 

A,  the  holder  of  a  note  payable  to  his  order  for  $1,000,  en- 
dorsed the  same  in  blank  and  placed  it  in  bank  before  maturity 


ANNUAL  EXAMINATIONS,  1898-99.  23 

for  collection  ;  the  bank  before  maturity  pledged  the  note  with 
B  for  a  sum  of  money  then  loaned  by  B  to  the  bank,  B  taking 
the  note  bona  fide  and  before  maturity.  A  brings  an  action  in 
trover  for  the  note. 

Can  he  recover?    Give  reason. 

IX. 

A  drew  a  draft  on  B  for  $i  ,000,  payable  thirty  days  after  date 
to  order  of  C.  The  draft  was  accepted  by  B  for  the  accommoda- 
tion of  A.  C  held  the  draft  till  after  maturity  and  then  endorsed 
it  to  D  for  value.  D  sues  B  as  the  acceptor. 

Can  he  recover?    Give  reason. 

X. 

A  executed  a  note  for  $500  to  the  order  of  B  under  false  and 
fraudulent  pretenses;  B  endorsed  the  note  to  C,  who  took  it  bona 
fide  for  value  before  maturity.  C  held  it  till  after  maturity  and 
endorsed  it  to  D  for  value. 

D  sues  A  on  the  note.     Can  he  recover?    Give  reasons. 


THIRD  YEAR. 

SURETYSHIP. 

Judge  Sayler. 


What  are  the  provisions  of  the  Statute  of  Frauds  so  far  as 
they  relate  to  suretyship  and  guaranty  ? 

II. 

What  are  the  points  of  difference,  if  any,  between  a  guaranty 
and  a  suretyship? 

III. 

A  is  indebted  to  B  on  an  account  for  goods  sold;  by  an  agree- 
ment between  A,  B,  and  C,  A  conveyed  certain  real  estate  to  C, 
and  as  part  consideration  therefor  C  promised  to  pay  B  the  amount 
of  the  account.  Is  the  promise  of  C  within  the  purview  of  the 
Statute  of  Frauds;  may  it  be  verbal,  or  must  it  be  in  writing,  to 
be  binding  ? 

IV. 

A  bought  1,000  barrels  of  flour  from  B  on  May  10,  1898,  on 
sixty  days  time.  Before  the  expiration  of  the  sixty  days  A 
became  insolvent,  and  at  his  request  C  gave  B  a  guaranty  in 
writing  as  follows:  "  I  guarantee  the  payment  at  maturity  of 
the  amount  owing  by  A  to  B  for  the  i  ,000  barrels  of  flour  sold 
to  A  by  B  on  May  10,  1898." 

Is  the  guaranty  binding?     Give  reason  for  answer. 

V. 

A  sold  a  horse  to  B  for  $150  on  the  following  terms:  $50 
was  paid  in  cash,  and  the  balance  to  be  paid  by  a  note  executed 
to  A  by  C  for  $100.  B  verbally  guaranteed  C  to  be  good.  On 
these  terms  the  sale  was  completed  and  A  delivered  the  horse  to 
B.  C  was  worthless,  and  A  sues  B  on  the  verbal  guaranty. 

Can  he  recover  ?     Give  reasons. 


ANNUAL  EXAMINATIONS,  189S-9!».  25 

VI. 

A,  the  owner  of  premises,  contracted  with  B  to  build  a  house 
on  them.  B  entered  into  a  contract  with  C  to  furnish  the  wood- 
work for  $10,000,  to  be  paid  in  installments;  C  prepared  and 
delivered  the  first  installment  of  the  wood-work,  for  which  B 
paid  after  delay;  C  prepared  and  delivered  the  second  installment 
of  the  wood-work  and  demanded  payment,  which  was  delayed. 
C  then  prepared  the  rest  of  the  wood-work  called  for  in  the  con- 
tract, but  refused  to  deliver  the  same  until  the  installments  fur- 
nished by  him  had  been  paid  for.  Under  these  circumstances  A 
saw  C  and  told  him  that  he  was  the  owner  of  the  building;  that 
he  wanted  it  finished,  and  that  if  C  would  go  ahead  and  deliver 
the  rest  of  the  wood- work,  he,  A,  would  see  him  paid  therefor; 
if  B  did  not  pay,  he,  A,  would  take  it  out  of  the  amount  going 
to  B  and  would  pay  C.  Relying  on  this  promise,  C  delivered  all 
the  wood-work  called  for  in  the  contract,  but  the  sum  of  $3,000 
remained  unpaid.  C  sues  A  on  his  promise. 

Can  he  recover?     Give  reasons. 

VIT. 

A,  a  minor,  bought  a  horse  of  B  for  $100  on  credit,  to  be  paid 
for  in  six  months.  B,  not  knowing  that  A  was  a  minor,  deliv- 
ered the  horse  to  him'  B  afterward  learned  that  A  was  a  minor, 
and  thereupon  B  asked  for  a  guaranty.  Thereupon  C  gave  a 
guaranty  as  follows:  "  In  consideration  of  $1.00  to  me  paid  by 
B,  the  receipt  of  which  is  acknowledged,  I  hereby  guarantee  that 
A  will  pay  at  maturity  the  $100  which  A  has  promised  to  pay  B 
for  the  horse  sold  to  A  by  B."  The  $1.00  consideration  was  in 
fact  not  paid.  A  did  not  pay  the  debt.  B  sues  C  on  the  guaranty. 

Can  he  recover?     Give  reasons  for  answer. 

VIII. 

A  as  principal  and  B  as  surety  executed  a  note  payable  to 
the  order  of  C.  At  maturity  A  went  to  C  and  tendered  him  the 
money,  but  C  declined  to  receive  it,  giving  as  a  reason  that  he 
had  no  use  for  the  money  and  requested  that  A  would  keep  it. 
A  was  then  solvent,  and  afterward  became  insolvent. 

C  sues  B  on  the  note.  Can  he  recover?  Give  reasons  for 
answer. 


-'I.  I.\U      !>I.I'\KTMIN  I     <.l       1111.     I    MVIKMI\     .'I 

IX. 

A,  l>eing  in  the  employment  of  a  hank  as  caslm-r,  herame  a 
defaulter,  hut  made  settlement  with  the  bank.  Thereupon  the 
hank  requested  that  he  should  give  a  lx>nd  conditioned  that  he 
would  faithfully  perform  his  duties  and  pay  over  all  moneys.  H 
herame  surety  on  the  lx>nd  of  A.  B  was  not  informed  of  the  prior 
defalcation.  A  became  a  defaulter  and  absconded.  Suit  was 
brought  by  the  bank  against  B  on  the  bond. 

Can  the  bank  recover?    Give  reasons  for  answer. 

X. 

A  was  elected  to  the  office  of  Sheriff  of  Hamilton  County,  and 
as  such  was  required  by  law  to  give  bond  for  the  faithful  perform- 
ance of  the  duties  of  his  office.  He  went  to  B  and  asked  him  to 
become  a  surety  on  his  bond.  B  refused  to  do  so  unless  A  would 
first  get  C  to  sign  it.  A  went  away  saying  that  he  would  get  C  to 
sign  it.  On  the  next  day  A  returned  with  the  signature  of  C 
appearing  to  the  bond.  Then  B  signed  it.  A  became  a  defaulter 
and  suit  was  brought  against  A,  B,  and  C  on  the  bond.  A  allowed 
the  case  to  go  by  default.  C  pleaded  that  his  signature  was  a 
forgery.  B  pleaded  that  he  signed  the  bond  as  surety  believing 
that  the  signature  of  C  was  genuine,  and  knowing  him  to  be  re- 
sponsible; that  the  signature  of  C  was  a  forgery,  and  that  there- 
fore he  was  not  liable  on  the  bond. 

Plaintiff  demurred  to  the  answer  of  B. 

How  would  you  decide  the  demurrer? 


THIRD  YEAR. 


PRIVATE  CORPORATIONS. 

fir.  Benedict. 

GIVE   REASONS   FOR   EACH   ANSWER. 


I. 

This  was  an  action  of  replevin,  in  which  the  title  of  the  plain- 
tiff to  the  chattels  in  question  was  put  in  issue  by  the  answer. 
The  evidence  of  the  plaintiff's  title  was  that  the  property  belonged 
to  a  corporation  known  as  The  Hayden  Manufacturing  Co.,  and 
that  he  purchased  and  became  the  sole  owner  of  all  of  the  capital 
stock  of  said  corporation.  As  the  plaintiff  in  his  testimony 
expressed  it,  "  I  bought  all  the  stock;  I  own  all  the  stock  now. 
I  became  the  absolute  owner  of  the  mill.  The  chattels  belonged 
at  that  time  to  the  company,  and  I  am  the  company."  There 
was  no  other  evidence  of  the  condition  of  the  corporation  at  the 
time. 

Is  this  sufficient  evidence  of  the  plaintiff's  title  to  maintain 
his  action  ? 

Button  v.  Hoffman,  61  Wis. ,  20. 

II. 

The  Franklin  Bank,  a  corporation,  brought  an  action  against 
the  Commercial  Bank,  also  a  corporation,  for  damages  for  con- 
version, alleging  that  the  defendant  bank  refused  to  transfer  on 
its  books  to  the  name  of  the  Franklin  Bank  the  two  hundred 
shares  of  the  capital  stock  of  the  Commercial  Bank,  represented 
by  the  certificate  issued  to  Foote,  and  by  him  pledged  to  the 
Franklin  Bank  as  security  for  the  loan  obtained.  Such  refusal  to 
so  transfer  said  stock  and  an  alleged  subsequent  conversion  of  the 
same  by  the  defendant  Bank  constituted  the  gravamen  of  the 
plaintiff's  action. 

Can  the  plaintiff  maintain  the  action. 

Franklin  Bank  v.  Commercial  Bank,  36  O.  S.,  350. 


I.\U      |)ir\KTMI.M     »\      Till      iMM.KMIN      »l     CINCINNATI. 
III. 

Foster  brings  his  action  against  Moulton  and  other>  to  recover 
s  against  them.  Tin.-  complaint  sets  out  what  pur|>orts  to 
be  articles  of  incorporation  of  a  mutual  Ijcnefit  association,  which 
appears  to  have  been  intended  to  be  a  sort  of  mutual  insurance 
company,  and  alleges  that  said  articles  were  duly  executed  by  the 
defendants,  and  duly  recorded  with  the  Register  of  Deeds  and 
Secretary  of  State;  that  one  McCarthy  became  a  meml>er  of  the 
association,  paid  his  dues,  received  a  certificate  of  membership; 
that  he  received  bodily  injury,  entitling  him,  as  such  member,  to 
pecuniary  benefit;  that  the  amount  due  him  under  the  terms  of 
his  meml>ership  has  not  been  paid;  and  that  he  has  duly  assigned 
his  right  to  such  benefit  to  the  plaintiff. 

The  allegations  also  showed  that  the  association  had  not  complied 
with  the  statute  so  as  to  become  an  insurance  corporation  de  jure. 

Can  the  plaintiff  maintain  the  action  ? 

Foster  v.  Moulton,  35  Minn.,  458. 

IV. 

State  v.  Dawson  et  al.,  10  Ind.,  40. 

An  information  was  filed  against  the  defendants,  charging 
that  they  are  pretending  to  be  a  corporation  and  to  act  as  such. 
when  they  are  not  a  corporation.  It  charges  that  in  January, 
1849,  the  Legislature  of  Indiana  enacted  a  special  charter  of 
incorporation,  which  is  set  out  at  length,  for  a  railroad  from  Ft. 
Wayne,  Indiana,  to  Jeffersonville,  to  be  called  The  Ft.  Wayne 
and  Southern  Railroad;  that  the  persons  named  in  the  charter  as 
directors  did  nothing  until  June  2,  1852,  when  they  did  meet  and 
accept  the  same,  and  organized  under  it.  It  is  alleged  that  the 
defendants  are  assuming  to  act  under  said  charter,  never  having 
organized  under  any  other.  The  present  Constitution  of  Indiana 
took  effect  November  i,  1851.  It  contains  these  provisions: 

"  All  laws  now  in  force,  and  not  inconsistent  with  this  Con- 
stitution, shall  remain  in  force  until  they  shall  expire  or  be 
repealed." 

"Corporations,  other  than  banking,  shall  not  be  created  by 
special  act,  but  may  be  formed  under  general  laws." 

Is  the  State  entitled  to  judgment,  if  the  allegations  of  the 
information  are  true? 


ANNUAL  EXAMINATIONS,  1898-5)9.  i>9 

V. 

On  the  ist  of  December,  1898,  at  which  time  A  was  the  owner 
of  shares  of  stock  in  a  corporation,  the  corporation  properly  de- 
clared a  dividend,  payable  on  the  ist  of  January  following.  On 
the  loth  day  of  December,  1898,  A  sold  his  stock  to  B.  On 
the  1 5th  day  of  January,  1899,  B,  who  that  day  had  his  stock 
transferred  on  the  books  of  the  corporation,  demanded  the  divi- 
dends declared  December  ist,  1898,  and  A  also  demanded  the 
dividends. 

Who  is  entitled  to  them? 

VI. 

This  is  a  bill  in  equity  by  a  creditor,  the  substantial  alle- 
gations of  which  are,  that  the  plaintiffs  are  creditors  of  the  de- 
fendant corporation;  that  the  corporation  is  insolvent;  that  all 
its  property  is  mortgaged  to  trustees  for  the  benefit  of  one  class 
of  creditors;  that  it  owes  large  amounts  to  other  creditors,  one 
of  whom  has  attached  all  of  its  property;  that  it  is  about  to  ex- 
ecute a  lease  to  said  attaching  creditor,  for  the  term  of  nine  hun- 
dred and  ninety-nine  years,  at  a  rental  which  will  not  pay  the 
interest  upon  its  indebtedness,  and  that  the  execution  of  said 
lease  would  be  injurious  to  the  interest  of  its  creditors  and  stock- 
holders. The  prayer  is  for  an  injunction  to  restrain  the  defend- 
ant from  further  prosecuting  its  business,  and  for  the  appoint- 
ment of  receivers.  Demurrer  to  the  bill. 

Should  the  demurrer  be  sustained  or  overruled  ? 

130  Mass.,  194. 

VII. 

A  corporation  being  hopelessly  insolvent,  made  a  general  as- 
signment of  all  its  property  for  the  benefit  of  its  creditors,  but  on 
the  same  clay,  and  before  doing  so,  mortgaged  most  of  its  assets 
to  creditor  A  to  secure  his  claim. 

By  the  common  law  of  Ohio,  does  A  get  a  mortgage  prefer- 
ence, or  not?  Is  there  any  conflict  among  the  authorities.  If 
so,  state  what  the  rules  are  and  the  reasons  thereof. 


!.\U     IH  I'AKTMKNT   "I     Till      IMVKKSITY   (H     ClM  INNATI. 

VIII. 

Suit  having  l)een  brought  against  A,  a  stockholder  in  an 
Ohio  corporation,  to  enforce  his  statutory  liability,  A  sets  up  that 
the  incorporation  is  indebted  to  him  for  legal  services  rendered. 

May  he  do  so  ? 

IX. 

On  January  ist,  1898,  A  is  a  stockholder  in  an  Ohio  corpora- 
tion, and  continues  to  be  such  till  the  isth  day  of  January,  1898, 
when  he  transfers  his  stock  to  B,  and  on  that  day  the  stock  is 
transferred  on  the  books  of  the  company  to  B.  B  continues  to 
be  a  stockholder  until  the  company  becomes  insolvent,  July  i, 
1898.  X  is  a  creditor  of  the  corporation,  having  become  such 
January  5,  1898.  Y  is  a  creditor  of  the  company,  having  become 
such  January  20,  1898. 

What  is  the  Ohio  statutory  liability  of  A  and  B  to  X  and  Y, 
if  any? 

What  are  the  rights  and  liabilities  of  A  and  B,  as  between 
themselves? 

X. 

The  plaintiff  corporation,  a  turnpike  company,  brought  an 
action  for  damages  against  the  defendants,  alleging  that  they 
had  destroyed  one  of  the  plaintiff's  toll-gates.  The  defendants 
answered,  in  justification,  alleging  facts  which  showed  that  the 
corporation  had,  by  repeated  acts  done  in  violation  of  the  express 
conditions  of  its  charter,  forfeited  it,  and  had  no  right  to  main- 
tain the  toll-gate  in  question.  The  plaintiff  demurred. 

Should  the  demurrer  be  sustained  or  overruled? 


THIRD  YEAR. 

CONSTITUTIONAL  LAW. 

rir.  florrill. 

c;iVH    REASONS     FOR     ANSWERS. 


I. 

The  Constitution  of  the  State  of  X  restricts  the  right  of  voting 
to  white  male  citizens  of  the  United  States,  twenty-one  years  of 
age,  and  residing  in  the  State  one  year.  The  vote  of  A,  B,  C,  and 
D  was  rejected  at  an  election.  All  were  born  in  the  United 
States,  had  always  lived  therein,  and  were  of  the  required  age 
and  residence. 

A  was  a  negro;  B  a  woman;  C  was  born  of  Chinese  parents, 
then  and  ever  since  doing  business  and  residing  in  the  United 
States  in  a  private  capacity,  but  subjects  of  the  Chinese  Empire; 
D  was  born  a  member  of  an  Indian  tribe  on  an  Indian  Reserva- 
tion, but  had  permanently  separated  himself  from  his  tribe  and 
had  lived  for  some  years  in  the  State  of  X. 

What  would  be  your  decision  on  demurrers  to  a  petition  by 
each  for  damages  against  the  judges  of  said  election  ? 

II. 

A,  a  citizen  of  Kentucky,  sues  B,  a  citizen  of  Ohio,  in  an 
Ohio  court  on  a  promissory  note  made  in  Ohio  by  B,  and  payable 
there.  B  sets  up  an  Ohio  discharge  in  insolvency;  the  plaintiff 
had  not  proved  his  claim.  The  court  holds  this  discharge  a  bar. 
The  case  goes  up  on  error  to  the  Supreme  Court  of  the  United 
States. 

How  should  it  be  decided  ? 

III. 

A  United  States  Bankruptcy  Act  exempts  from  its  provisions 
touching  involuntary  bankruptcy,  wage  earners,  and  farmers.  A 


I.\U     1)1  I-AHTMKNT  OK   TIIK    f.MVJ-KSITV   Ol     CINCINNATI. 

merchant  moves  to  dismiss  proceedings  against  him  in  involuntary 
bankruptcy  on  the  ground  that  the  law  discriminates  in  favor  of 
certain  classes,  grants  special  privileges,  and  withholds  equal 
protection,  and  is  therefore  unconstitutional. 

a.     Should  said  motion  !>e  granted  ? 

fr.  Point  out  the  constitutional  provisions  bearing  upon  the 
1 1  nest  ion. 

IV. 

The  United  States  having  acquired  sovereignty  over  the  island 
of  Porto  Rico  by  conquest  and  treaty,  suppose  a  territorial  gov- 
ernment be  established  therein  under  an  act  of  Congress  provid- 
ing that  the  criminal  law  now  administered  in  said  island  shall 
continue  in  force  for  one  year,  which  law  dispenses  with  grand 
and  petit  juries  in  criminal  cases. 

a.  If  one  were  convicted  of  a  capital  crime  under  such  law 
and  procedure,  would  the  federal  courts  give  him  relief  in  cases 
where  such  courts  had  jurisdiction? 

b.  Suppose  Congress  should  pass  an  act  discriminating  in 
favor  of  the  ports  of  such  new  territory,  as  against  those  of  t he- 
States  in  the  matter  of  duties  on  imports,  would  such  a  law  lx> 
valid? 

V. 

Suppose  a  State,  by  a  penal  statute,  prohibits  citizens  of  other 
States  from  carrying  on  business  therein  without  payment  of  a 
license  fee,  and  by  a  similar  statute,  foreign  corporations  are 
placed  under  a  like  prohibition.  No  such  fee  is  required  of  citi- 
zens or  corporations  of  the  State. 

Are  these  statutes  valid  ? 

VI. 

Suppose  a  statute  of  Kansas  makes  it  a  penal  offense  to  bring 
intoxicating  liquors  into  the  State  for  sale  there.  A  brings  an 
action  for  damages  against  an  Illinois  corporation  for  refusing  to 
transport  a  quantity  of  beer  in  the  original  packages  to  Kansns 
to  be  sold  there.  The  corporation  pleads  the  Kansas  statute  as  a 
defense. 

Assuming  that  Congress  has  not  legislated  on  this  subject, 
how  would  you  decide  a  demurrer  to  this  plea? 


ANNUAL  EXAMINATIONS,  1898-99.  33 

VII. 

Under  the  usual  constitutional  provisions  for  the  organization 
of  municipalities,  a  city  was  authorized  by  statute  to  establish 
works  and  issue  bonds : 

a.  For  supplying  gas  for  public  and  private  consumption. 

b.  For  supplying  ordinary  fuel  for  such  consumption. 

c .  For  supplying  natural  gas  for  public  and  private  use  as 
light  and  fuel. 

Could  the  proposed  issue  of  bonds  for  either  of  these  purposes 
be  restrained,  and  if  so,  which? 

VIII. 

In  1860,  the  State  of  N  chartered  two  corporations-,  authoriz- 
ing one  to  establish  and  maintain  slaughter  houses,  and  the  other 
gas  works  in  a  certain  city.  These  rights  were  made  exclusive 
for  a  period  of  thirty  years.  In  1870,  through  a  constitutional 
amendment,  it  was  provided  that  all  monopolistic  features  of 
existing  corporations  should  be  thereby  abolished.  Thereupon 
other  corporations  were  created  with  like  powers,  except  as  to 
the  feature  of  exclusiveness.  The  old  corporations  filed  bills  to 
enjoin  the  new. 

Should  the  relief  be  granted? 

IX. 

Give  the  general  grounds  on  which  the  late  United  States 
Income  Tax  L,aw  was  held  invalid,  and  the  special  grounds  on 
which  it  was  so  held  as  to  income  from  State  and  municipal  official 
salaries,  and  from  State  and  municipal  bonds. 

X. 

Suppose  a  city  was  authorized  by  a  State  statute  to  construct 
a  steam  railroad  terminating  therein,  and  issue  bonds  therefore. 
That  the  act  was  declared  constitutional  by  the  highest  court  of 
the  State  before  such  issue.  That  a  citizen  of  that  State  now 
brings  a  suit  to  enforce  the  collection  of  one  of  these  bonds,  and 
this  court  reverses  its  previous  decision  and  holds  the  bond  invalid. 
A  citizen  of  a  sister  State  also  brings  a  suit  on  another  of  such 


34  LAW  DEPARTMENT  OF  THK  UNIVERSITY  OH  CINCINNATI. 

bonds  in  the  Circuit  Court  of  the  United  States,  which  court 
follows  the  later  State  decision.  These  suits  being  taken  to  the 
Supreme  Court  of  the  United  States,  in  the  first  a  motion  is  made 
to  dismiss  the  same  for  want  of  jurisdiction,  in  the  second  the 
case  comes  up  for  hearing. 

What  would  l>e  your  decision  in  each  case? 

XI. 

Suppose  an  Act  of  Congress  makes  proprietors  of  hotels  and 
restaurants  liable  for  discriminating  against  persons  on  account  of 
race  or  color,  and  a  State  Act  makes  similar  provisions. 

a.  Could  a  colored  man  maintain  an  action  under  either  of 
these  acts? 

b.  Suppose   the   State   in   question  had   jurisdiction  over  a 
portion  of   the  Ohio  River,  and  a  statute  of   the  State  made  a 
similar  provision  touching  common  carriers,  could  a  colored  man 
maintain  a  suit  against  a  vessel  engaged  in  navigating  the  entire 
length  of  the  river  on  the  ground  of  such  discrimination  ? 

XII. 

A  stockholder  of  a  railroad  corporation  brings  a  suit  to  enjoin 
railroad  commissioners  of  a  State  from  enforcing  a  scale  of  maxi- 
mum charges  fixed  by  them  for  transporting  freight  and  passen- 
gers, wholly  within  the  State,  by  an  interstate  railroad  line.  Also 
a  second  suit  to  enjoin  such  regulations  as  to  transportation  from 
points  within  the  State  to  points  in  other  States.  In  the  first 
case  it  was  alleged  that  the  rates  fixed  rendered  that  portion  of 
the  business  of  the  company  wholly  within  the  State  worthless, 
and  that  in  the  second,  the  statute  authorizing  the  regulations, 
violated  the  Federal  Constitution. 

Should  relief  be  granted  in  these  suits  ? 


THIRD   YEAR. 


EQUITY. 

Judge  Smith. 


GIVE    REASONS    BRIEFLY   FOR   ANSWERS. 


I. 

a.  A  was  entitled  to  a  tract  of  land  under  the  will  of  B. 
He  believed  himself  entitled  to  a  life  estate,  but  knew  there  was 
a  doubt  as  to  whether  he  was  not  entitled  to  the  fee.     C  was  also 
aware  of  this  doubt.     He  gave  A  $5,000,  and  in  consideration  of 
this  amount  A  executed  a  quitclaim  deed  to  the  land  to  C.     Sub- 
sequently, in  construing  the  will  of  B,  it  was  determined  that  A 
had  inherited  a  fee.     A  brought  suit  to  rescind  the  sale  on  the 
ground  of  mistake,  and  tendered  back  to  C  the  $5,000,  with  in- 
terest. 

Was  he  entitled  to  relief? 

b.  A  purchased  from  B  the  fee  simple  of  a  tract  of  land,  and 
C,  an  attorney,  was  instructed  and  employed  by  A  to  prepare  a 
deed  of  conveyance.     The  deed  of  conveyance  recited  that  the 
property  was  conveyed  to  A  and  the  heirs  of  his  body,  the  attor- 
ney being  of  the  opinion  that  such  a  conveyance  gave  A  a  fee 
simple  title.     Subsequently  it  was  discovered  that  the  attorney 
was  mistaken. 

Can  A  rescind  the  transaction? 

c.  A  was  devised  a  fee  simple  title  to  land  by  his  father,  but 
was  under  the  impression  it  was  a  life  estate  only.     B,  who  was  a 
lawyer  and  aware  that  A  was  the  owner  of  the  fee  simple-  and 
that  A  thought  he  had  only  a  life  estate,  purchased  his  interest 
in  the  property  without  disclosing  to  A  the  true  nature  of  his 
title. 

Is  A  entitled  to  any  relief? 

d.  The  legislature  having  passed  a  law  changing  the  county 
seat  from  the  northern  part  of  the  county  to  a  town  in  the  south- 


LAW  DKPARTMKNT  OH  THK  UNIVHRSITY  OF  CINCINNATI. 

ern  part  of  the  county,  A,  who  owned  property  in  the  latter 
town,  gave  a  site  for  a  Court-house  to  the  County  Commission- 
ers.    The  law  was  declared  unconstitutional. 
Can  A  rescind  the  transfer? 

f.  A  learned  that  Wellington  had  defeated  Napoleon  at 
Waterloo  before  B  learned  it.  The  news  of  this  event  in  Eng- 
land advanced  the  value  of  property  of  every  kind.  A,  without 
disclosing  his  knowledge  to  B,  purchased  his  land  at  a  price 
much  less  than  its  value.  B,  after  learning  of  the  result  of  the 
battle  and  of  A's  concealment,  brought  suit  to  rescind. 

Can  he  maintain  it  ? 

II. 

a.  A  and  B  supposed  a  certain  tract  of  land  contained  about 
200  acres.     It  contained  300  acres.     B  paid  A  $10  an  acre.     The 
consideration  of  the  deed  was  $2,000,  but  the  deed  described  the 
tract  as  containing  200  acres,  ' '  more  or  less, ' '  and  this  language 
was  used  with  the  knowledge  of  both  parties.     Subsequently  A 
learns  that  the  tract  contains  300  acres,  and  seeks  to  rescind. 

Can  he  succeed. 

b.  A  agrees  orally  with  B  to  convey  to  him  three  tracts  of 
land  for  $5,000.     The  deed  drawn  in  execution  of  this  oral  con- 
tract, however,  omits  one  of  the  tracts.     B  seeks  to  have  the 
contract  reformed  by  inserting  the  omitted  tract  in  the  deed. 
A  pleads  the  statute  of  frauds. 

Can  B  succeed  ? 

c.  A  agrees  in  writing  to  convey  to  B  the  fee  simple  of  a 
tract  of  land.     A  prepares  the  deed,  but  intentionally  conveys 
only  a  life  estate.     B  assumes  that  the  deed  is  proper,  but  does 
not  examine  it. 

Will  his  omission  to  examine  it  constitute  such  negligence  as 
will  deprive  him  of  relief? 

d.  A  is  induced  to  sell  his  land  by  fraudulent  representations 
of  B.     Subsequently  he  discovers  that  the  representations  were 
fraudulent,  but  takes  no  immediate  steps  to  rescind  the  sale,  be- 
cause he  knows  that  the  statute  of  limitations  of  the  State  pro- 
vides that  actions  to  set  aside  fraudulent  conveyances  may  te 


ANNUAL  EXAMINATIONS,  1898-99.  37 

brought  at  any  time  within  four  years  of  the  discovery  of  the 
fraud.     Meanwhile  B  builds  a  valuable  house  on  the  property. 
After  three  years  have  elapsed  from  the  discovery  of  the  fraud  A 
begins  suit  to  rescind  the  sale  on  the  ground  of  fraud. 
Can  he  maintain  the  suit? 

e.  A  is  induced  to  sell  his  land  by  the  fraudulent  representa- 
tions of  B.  When  A  discovers  that  the  representations  have 
been  fraudulent,  and  seeks  a  rescission  of  the  sale,  he  finds  that 
B  has  transferred  the  land  as  a  gift  to  C,  who  was  entirely  ignor- 
ant of  any  fraud  by  B  and  who  accepted  the  land  in  good  faith. 

Can  A  have  a  cancellation  of  the  deed  to  C  ? 

III. 
In  Ohio  — 

a.  A  gives  a  chattel  mortgage  to  B  and  it  is  placed  on  record, 
but  is  defectively  executed.     A  sells  the  chattel  property  to  C, 
who  examined  the  record  before  purchasing. 

Is  C  bound  by  the  mortgage  ?  Would  your  answer  be  the  same 
if  the  mortgage  was  properly  executed,  but  not  filed,  and  C  knew 
of  its  existence? 

b.  A  gives  a  chattel  mortgage  to  B,  but  it  is  not  filed.     Sub- 
sequently he  gives  a  chattel  mortgage  to  C  who  knows  of  the 
mortgage  to  B.     Which  mortgage  has  priority  ?     In  the  above 
case  suppose  the  mortgages  are  real  estate  mortgages,  instead  of 
chattel  mortgages,  would  your  answer  be  the  same. 

c.  A  sells  and  deeds  land  to  B  who  fails  to  record  his  deed. 
C  subsequently  purchases  the  land  from  A  with  knowledge  that 
B  has  an  unrecorded  deed. 

Which  deed  is  entitled  to  priority  ? 

Leave  out  of  consideration  the  registration  laws  of  Ohio  in 
answering  the  two  following  questions. 

d.  A  holds  lands  in  trust  for  B,  but  the  deed  to  A  does  not 
disclose  his  trust  character.     C  purchases  the  land  from  A. 

Can  B  assert  an  interest  in  the  property  ? 

e.  A  holds  lands  in  trust  for  B.     B  sells  his  equitable  interest 
to  C,  and  afterwards  sells  it  again  to  D  who  is  ignorant  of  the 
prior  sale  to  C. 

Which  has  priority,  C  or  D  ? 


88  I.AW  DKPAKTMKNT  OK  THK  I'NIVKRSITV  OH  CINCINNATI. 

IV. 

a.  A  is  induced  by  fraudulent  representations  to  sell  his 
land  to  B.  Having  discovered  the  fraud,  he  brings  an  action 
against  B  for  damages  and  recovers  a  judgment.  Before  issuing 
execution,  he  concludes  that  he  will  rescind  the  sale  and  files  a 
bill  in  equity  to  rescind. 

Is  the  bill  maintainable  ? 

6.  A  sells  land  to  B  making  representations  as  to  material 
facts  upon  which  B  relied.  A  believed  these  representations  to 
be  true,  but  finds  he  was  mistaken 

Can  B  rescind  the  sale? 

c.  If  A  purchases  a  stock  of  goods  when  he  is  insolvent  can 
the  vendor  rescind  the  sale  ? 

d.  A  threatens  to  arrest  and  prosecute  B  if  his  father  does 
not  assume  the  payment  of  the  money  which  B  has  embezzled 
from  A.     Induced  by  these  threats,  the  father  gives  his  notes  for 
the  debt  of  his  son  and  the  prosecution  is  abandoned. 

Are  the  notes  collectable  ? 

e.  Can  a  party  to  an  illegal  contract  ever   have  relief  in 
equity  by  way  of  rescission? 

V. 

a.  When  does  equity  assume  jurisdiction  in  mattersof  account. 

b.  A  devises  land  to  trustees  to  divide  among  C  and  D,  or  to 
sell  and  divide  the  proceeds.     While  the  trustees  are  considering 
whether  they  will  sell  the  land  or  not  C  dies. 

Does  his  interest  pass  to  his  heir  or  next  of  kin? 

c.  A  duly  contracts  to  sell  his  land  to  B,  the  transaction  to 
be  completed  as  soon  as  the  title  can  be  examined.     Before  the 
examination  is  completed  a  house  upon  the  property  burns  down. 

Is  B  compelled  to  complete  the  contract.  If  so,  who  bears 
the  loss  of  the  house  ? 

d.  A,  who  was  the  owner  of  a  tract  of  land,  by  a  writing 
addressed  to  B,  declared  himself  a  trustee  of  the  property  for 
B,   but  did  not  put  him  in  possession.     A  died  and  his  heirs 
claimed  the  property  on  the  ground  that  there  was  no  consideration. 

Is  their  claim  sound? 


ANNUAI,  EXAMINATIONS,  1898-99.  39 

e.     Can  a  trust  be  created  which  will  not  terminate  within  the 
time  fixed  by  the  law  against  perpetuities? 


VI. 

a.  What  was  meant  by  a  wife's  equity  to  a  settlement? 

b.  What  is  the  doctrine  of  cy  pres? 

c.  What  is  the  fundamental  difference  between  a  resulting 
and  constructive  trust  ? 

d.  What  is  meant  by  the  equity  of  redemption? 

e.  When  does  equity  relieve  on  the  ground  of  accident  ? 

VII. 

a.  A  is  a  creditor  of  B.    A  assigns  his  claim  to  C  by  an 
instrument  properly  executed.     Subsequently  A  again  assigns  his 
claim  to  D  by  an  instrument  properly  executed  to  D,  who  has  no 
knowledge  of  the  prior  assignment  to  C.    D  gives  notice  of  his  as- 
signment to  B.    B,  upon  examination,  finds  the  facts  asabove  stated 
and  pays  the  money  to  C.     D  sues  B  for  the  amount  of  the  claim. 

Can  he  recover? 

b.  A  mortgages  Blackacre  to  B  to  secure  a  promissory  note 
of  $2,000,  and  mortgages  Whiteacre  to  B  to  secure  a  promissory 
note  of  $3,000.     A  also  gives  C  a  second  mortgage  on  Blackacre 
to  secure  $5,000.    When  the  different  debts  fall  due  A  is  unable  to 
pay  them.     Blackacre  is  worth  but  $3,000,  and  Whiteacre  $10,000. 

Can  C  compel  B  to  make  all  of  his  money  out  of  Whiteacre, 
so  that  there  will  be  enough  left  from  Blackacre  to  pay  his 
mortgage. 

c.  What  is  the  chief  difference  between  a  legal  and  an  equit- 
able lien  ? 

d.  Will  courts  of  equity  give  the  remedy  of  reformation  in 
all  cases  in  which  they  give  rescission  ? 

e.  What  very  important  remedy  does  our  statute  give  in 
partition  that  equity  did  not  give  ? 


40  LAW  DKHARTMKNT  OF  TIIK  UNIVKRSITV  OF  CINCINNATI. 

VIII. 

a.  What  is  a  creditor's  bill? 

b.  Can  a  suit  be  maintained  solely  to  secure  the  appointment 
of  a  receiver? 

c.  A  and  B  own  adjoining  lots.     B  desires  to  build  a  house 
on  his  lot  and  asks  A  where  the  dividing  line  is.     A  describes  to 
him  what  he  honestly  believes  to  be  the  line,  but  is  mistaken  and 
fixes  the  line  too  far  over  on  his  own  property.     B  builds  his 
house  up  to  the  line  so  given.     Upon  discovering  his  mistake,  A 
demands  the  removal  of  the  house. 

Can  he  secure  its  removal  ? 

d.  Supposing  A  saw  B  building  a  house  over  on  his  property, 
but  said  nothing,  A  knowing  that  the  building  was  going  up  on 
his  property,  but  B  supposing  he  was  building  on  his  own  property? 

Suppose  A  did  not  know  B  was  building  on  the  land  of  A? 


THIRD  YEAR, 
i 

PROPERTY. 

Judge  Taft. 

GIVE  YOUR  REASONS   IN   FULL   FOR    EACH    ANSWER. 


Except  where  otherwise  indicated,  the  qiiestions  are  asked  with 
reference  to  the  Common  Law. 

I. 

I^ease  by  A  to  B  for  term  of  ten  years  provided  that  if  quar- 
terly rent  of  $100.00  was  not  paid  when  due,  the  lease  should  be 
void.  B  defaulted  in  the  rent,  though  duly  demanded.  On  B's 
default,  A  leased  same  land  to  C  for  fifteen  years.  C  brought 
ejectment  against  B.  A  brought  covenant  against  B  for  the 
quarter's  rent  under  the  lease.  B  pleaded  the  condition  of  the 
lease,  its  breach,  the  consequent  avoiding  of  the  lease,  and  the 
ceasing  of  B's  obligation  thereunder. 

Give  judgment  in  each  case. 

II. 

A  conveyed  land  by  deed  to  the  city  in  fee  for  park  purposes, 
on  condition  that  if  the  city  ever  used  it  for  any  other  than  park 
purposes,  the  grant  should  be  void  and  the  premises  should  revert 
to  the  grantor  and  his  heirs.  By  a  subsequent  deed,  A  conveyed 
all  his  interest  in  the  same  land  in  fee  to  a  museum  association  for 
the  purposes  of  the  association.  The  city  after  some  years  ceased 
to  use  the  land  as  a  park  and  turned  it  into  a  sewage  farm.  The 
museum  association's  officers  entered  upon  the  premises  for  con- 
.  dition  broken.  They  were  removed  by  order  of  the  Mayor.  The 
association  then  brought  ejectment. 

Would  it  lie? 

III. 

Devise  ' '  to  William  for  h'fe  and  on  his  death  to  the  heirs  of 
his  body  in  such  shares  and  proportions  as  he  may  by  deed  or 
will  appoint,  and  for  want  of  such  appointment  then  to  the  heirs 


42  LAW  DKPAKTMKNT  OF  THK  I'MVKRSITY  OF  CINCINNATI. 

of  his  body  as  tenants  in  common,  share  and  share  alike,  and  on 
failure  of  issue  to  that  son  of  John  who  first  attains  the  age  of 
25  and  his  heirs,  and  if  such  son  dies  without  issue  living  at  his 
death,  then  to  George  and  his  heirs."  William  suffered  a  com- 
mon recovery  to  himself  and  his  heirs  and  died  intestate,  leaving 
his  wife  enceinte.  Six  months  later  a  son  was  born. 

What  estate  did  the  son  of  William  take,  if  any,  and  if  he 
took,  was  it  by  purchase  or  descent?  Would  the  clause  of  the 
will  be  given  an  effect  in  Ohio  different  from  that  at  common  law  ? 

IV. 

In  (III)  John  was  a  bachelor  at  testator's  death  but  had  a 
son  who  lived  to  be  25.  William's  son  died  before  John's  son 
without  issue.  John's  son  died  without  issue,  living  George. 
George  then  brought  ejectment  against  the  person  in  possession, 
who  was,  at  the  same  time,  heir  at  law  of  the  testator,  William 
and  William's  son. 

Who  should  have  had  judgment?  If  William  had  suffered  no 
recovery,  would  your  judgment  have  been  different? 

V. 

Devise  "  to  A  for  life  and  on  A's  death  in  fee  to  those  chil- 
dren of  B  that  attain  the  age  of  21,  as  tenants  in  common."  B 
dies  before  testator,  but  leaves  two  children,  both  of  whom  are 
infants  at  the  death  of  the  testator. 

What  interest,  if  any,  have  the  children  in  the  land  devised 
at  the  death  of  the  testator  ?  Suppose  A  dies  before  the  testator, 
how  is  their  interest  changed  ? 

VI. 

A  enfeoffed  B  and  his  heirs  of  Blackacre  and  Whiteacre  to 
such  uses  as  B  should  by  deed  or  will  appoint,  and  in  default  of, 
and  until  appointment,  to  the  use  of  B  and  his  heirs.  B,  for  a 
valuable  consideration,  enfeoffed  C  of  Whiteacre.  D,  a  creditor 
of  B,  took  judgment  and  acquired  a  lien  on  Blackacre  and  was 
given  possession.  For  a  valuable  consideration  B  then  by  deed 


ANNUAL  EXAMINATIONS,  1898-99.  43 

appointed  both  Whiteacre  and  Blackacre  to  E  and  his  heirs.  E 
brought  a  suit  in  ejectment  against  C  for  Whiteacre,  and  one 
against  D  for  Blackacre. 

What  would  be  your  judgment  in  each  case? 

VII. 

If  (in  VI)  B  was  married  at  time  of  first  enfeoffment  and 
died  after  the  appointment,  leaving  a  widow,  could  she  maintain 
a  bill  for  assignment  of  dower  in  either  tract? 

VIII. 

By  A's  will  it  was  provided  that  certain  funds  should  be  in- 
vested by  trustees  in  real  estate,  to  be  held  in  their  names  as 
trustees,  that  they  should  pay  the  income  for  life  to  B,  and  that 
they  should  convey  the  land  on  B's  death  to  the  person  or  per- 
sons to  whom  B  should  by  will  appoint.  Blackacre  and  Whiteacre 
were  purchased  by  the  trustees.  B  died,  leaving  some  real  and 
personal  property  of  her  own.  By  her  will  she  made  no  mention 
of  the  power,  but  she  devised  Blackacre  to  C  and  his  heirs,  and 
then  devised  and  bequeathed  "all  the  rest  and  residue  of  my 
estate,  of  every  nature  and  kind,  to  D  and  his  heirs." 

Was  this  an  effective  appointment  of  either  one  or  both  of  the 
tracts  ? 

IX. 

Devise  "to  A  for  life,  and  after  his  death  to  his  wife  for  life, 
and  on  her  death  to  the  then  surviving  children  of  the  marriage." 
At  the  testator's  death  A  is  a  bachelor. 

Is  the  devise  to  the  children  good  at  common  law?  How 
would  it  be  under  the  statute  of  Ohio  against  remoteness? 

X. 

Devise  to  testator's  grandson  A  for  life,  remainder  to  that 
one  of  A's  children  who  should  first  attain  the  age  of  thirty, 
and  if  A  died  without  issue  living  at  his  death,  or  if  no  child  of 
his  should  live  to  be  thirty,  over  to  the  then  living  children  of  B 
a  brother  of  A.  A  was  never  married.  B  had  two  children 
living  at  A's  death. 

Could  B's  children  take? 


44  LAW  DKPAKTMBNT  OK  THK  UNIVERSITY  OF  CINCINNATI. 

XI. 

Devise  to  A  son  of  testator  for  life,  remainder  for  life  to  A's 
children,  share  and  share  alike,  remainder  in  the  share  of  each 
child  to  that  child's  children  and  their  heirs  as  tenants  in  com- 
mon. A  had  five  children  living  at  testator's  death  and  five 
others  who  were  born  thereafter.  Kach  of  A's  children  had 
children. 

Can  any  of  A's  grandchildren  take? 

XII. 

Devise  to  A  and  his  heirs,  and  if  A  does  not  dispose  of  the 
property  by  deed  or  will,  over  to  B  and  his  heirs.  A  dies  intes- 
tate without  having  conveyed  the  land. 

Does  B  take? 

XIII. 

Devise  to  testator's  son  and  his  heirs  with  a  condition  that  if 
he  sells  during  his  mother's  life  he  must  give  her  an  option  to 
buy  at  a  price  one-tenth  the  value  of  the  land.  The  son  sells 
and  conveys  the  land  during  the  life  of  his  mother  without  giv- 
ing her  an  opportunity  to  buy. 

Does  the  purchaser  get  a  good  title  ? 

XIV. 

A,  being  solvent,  on  his  marriage  with  B  settled  $100,000  of 
his  own  money  to  the  uses  of  a  settlement  which  were,  to  pay 
the  income  to  himself  for  life  or  until  his  bankruptcy  or  insol- 
vency, then  to  pay  the  income  to  his  wife  for  life,  and  on  her 
death  to  pay  the  principal  to  the  children  of  the  marriage. 
Subsequently  A  was  adjudged  a  bankrupt,  and  the  assignee  in 
bankruptcy  filed  a  bill  against  the  trustees  of  the  settlement  to 
compel  them  to  turn  over  the  whole  fund  of  $100,000,  or  other 
proper  relief. 

What  decree  would  you  have  entered  ? 

XV. 

Bequest  to  A  testator's  son  for  life,  of  the  income  from  a 
fund  to  be  held  by  trustees  with  restriction  that  the  same  shall 


ANNUAL  EXAMINATIONS,  1898-99.  45 

not  be  subject  to  the  son's  debts.  A  creditor  of  A  having  ob- 
tained a  judgment  seeks  by  bill  in  equity  against  the  trustees  to 
subject  the  income  for  life  to  the  payment  of  it. 

What  decree  would  you  enter?  Draft  a  bequest,  if  you  can, 
under  which,  by  all  the  authorities,  the  income  would  be  free 
from  son's  debts,  and  yet  the  income  might  be  paid  him  by  the 
trustees  regularly  without  deduction. 

XVI. 

B,  a  lawyer,  made  a  million  dollars  in  speculations  in  grain  in 
the  Chicago  wheat  market.  He  invested  $500,0x30  in  government 
bonds,  which  he  gave  to  his  wife,  and  had  them  registered  in  her 
name.  Continuing  his  speculations  with  the  remaining  half 
million,  he  necessarily  assumed  obligations  which  would  be  far  in 
excess  of  his  capital,  if  there  should  be  a  substantial  fall  in  the 
price  of  wheat.  Wheat  fell  and  B  lost  his  half  million  and 
became  a  debtor  for  two  millions  besides.  His  creditors  filed  a 
bill  against  him  and  his  wife  to  subject  her  bonds  to  the  payment 
of  his  debts. 

What  decree  would  you  enter?  Does  the  English  rule  for 
determining  the  validity  of  a  debtor's  conveyance  against  future 
creditors  differ  from  that  followed  in  Ohio?  If  so,  how? 

XVII. 

A,  the  owner  of  Blackacre  and  Whiteacre,  sells  and  conveys 
the  former  to  B  and  mortgages  the  latter  to  him.  A,  for  value 
received,  then  mortgages  Blackacre  to  C  and  Whiteacre  to  D,  and 
these  mortgages  are  recorded  before  B's  deed  and  mortgage.  C 
and  D  know  of  A's  conveyances  to  B  before  they  deal  with  A. 

Is  C's  mortgage  a  valid  lien  on  Blackacre  ?  Is  D's  mortgage 
on  Whiteacre  prior  in  right  to  B's?  Answer  under  Ohio  law  and 
under  the  law  of  other  States  generally. 

XVIII. 

A  has  a  mortgage  for  $1,000  on  land  which  is  prior  in  right 
to  a  mortgage  for  $2,000  held  by  B  on  the  same  land.  C  has  a 
mortgage  for  $2,000  on  the  land  which  is  prior  to  that  of  A  in 


4tt  LAW    Dl  I'AKTMJ  NT   OF  THK   UNIVERSITY  OF  CINCINNATI. 

right,  but  is  junior  to  that  of  B.  The  land  is  sold  in  a  foreclosure 
suit,  and  the  proceeds  of  sale,  amounting  to  $3,000,  are  brought 
into  court  for  distribution. 

How  should  the  liens  be  marshalled? 

XIX. 

B  for  value  executes  a  mortgage  on  Blackacre  to  C  with 
covenant  of  general  warranty.  C  records  the  mortgage  at  once. 
B  has  no  title  to  Blackacre  which  belongs  to  A  as  appears  from 
the  deed  records  of  the  Recorder's  office.  B  buys  Blackacre  from 
A  and  has  the  deed  of  conveyance  duly  recorded.  B  then  for 
value  mortgages  the  land  to  D  who  has  no  actual  notice  of  C's 
mortgage. 

Which  has  priority,  C's  mortgage  or  D's? 

XX. 

B's  widow  files  a  bill  for  the  assignment  of  dower  in  Black- 
acre  which  was  devised  to  B  as  follows :  ' '  To  B  and  his  heirs, 
and  if  B  dies  without  issue  living  at  his  death,  to  C  and  his 
heirs."  B  left  no  issue. 

What  decree  ought  to  be  entered? 


SECOND  YEAR. 


QUASI -CONTRACT. 

Mr.  Wald. 

GIVE   THE   REASON    FOR  YOUR  ANSWER   IN   EACH    INSTANCE. 


I. 

A  demanded  of  B  the  payment  of  $100,  previously  borrowed 
by  B  of  A.  B  contended  that  he  had  repaid  the  loan  and  had  A's 
receipt  therefor,  but  being  unable  to  find  the  receipt  after  search, 
he  paid  the  $100  to  A.  B  had,  in  fact,  previously  repaid 
the  loan,  and  subsequently  found  the  receipt  which  had  been 
mislaid.  He  now  sues  A  for  $100,  setting  forth  the  foregoing 
facts. 

What  judgment  should  be  entered? 

II. 

A  sold  to  B  at  par  a  mortgage  bond  of  $1,000,  executed  by 
the  X  Co.  Both  of  them  believed  the  mortgage,  securing  the 
bond,  was  a  first  lien  on  the  X  Co.'s  property.  It  turned 
out,  however,  to  be  only  a  junior  lien,  and  the  bond,  therefore, 
was  worthless.  B  sues  A  for  $1,000,  alleging  the  foregoing 
facts,  and  an  offer  to  return  the  bond. 

What  judgment  should  be  entered? 

III. 

A  and  B,  brothers,  were  citizens  of  Ohio,  and  the  only  chil- 
dren of  their  father.  The  father  died  intestate,  leaving  real 
estate,  situated  in  England.  Supposing  they  inherited  the  land 
in  equal  shares,  A,  the  older  brother  at  Cincinnati,  bought  from 
B,  the  younger,  the  latter's  supposed  half  interest  for  $10,000. 
Subsequently  it  was  discovered,  that  by  the  law  of  England,  the 
entire  realty  descended  to  A,  who  now  sues  B  for  $10,000,  alleg- 
ing the  foregoing  facts. 

What  judgment  should  be  entered? 


48  LAW  DKPARTMKNT  OK  THK  fxivKRSiTY  OF  CINCINNATI. 

IV. 

A  was  endeavoring  to  obtain  a  composition  with  his  creditors 
at  fifty  cents  on  the  dollar.  All  the  creditors  had  signed  the 
agreement  of  composition,  except  B.'who,  as  a  condition  of  sign- 
ing, exacted  a  cash  payment  of  twenty-five  cents  on  the  dollar  in 
addition,  which  A  made.  Afterward  A  sued  B  for  the  extra 
twenty-five  per  cent  so  paid,  alleging  the  foregoing  facts. 

What  judgment  should  be  entered? 

V. 

A,  an  innocent  holder  for  value,  presented  for  payment  to  B, 
a  banker,  three  negotiable  drafts,  drawn  by  the  maker  on  B  for 
$100,  $200,  and  $3,000,  respectively,  and  B  paid  them  all.  It 
afterward  transpired  that  in  the  case  of  the  first  draft  the  drawer's 
name  had  been  forged;  in  the  case  of  the  second  the  indorsement 
of  the  payee  had  been  forged;  and  in  the  case  of  the  third  the 
amount  of  the  draft  had  been  raised  from  $300  to  $3,000.  B 
thereupon  sues  A  in  three  counts  for  the  respective  sums  paid, 
alleging  the  foregoing  facts. 

What  judgment  should  be  entered  ? 

VI. 

A  agreed  to  buy  and  B  to  sell  him  B's  horse  Dictator  for 
$2,500,  and  A  paid  B  the  money.  B  had  two  horses  of  that 
name,  a  thoroughbred  and  a  trotting  horse.  A  meant  to  buy  the 
thoroughbred  and  B  to  sell  the  trotter,  which  he  offered  to  deliver, 
but  A  refused  to  accept.  A  sues  B  for  $2,500,  alleging  the  fore- 
going facts. 

What  judgment  should  be  entered? 

VII. 

A  by  an  oral  agreement  contracted  to  serve  B  for  two  years. 
After  having  worked  for  six  months,  he  learned  that  his  contract 
was  unenforceable  under  the  statute  of  frauds,  and  left  B's 
employ.  He  now  sues  B  for  the  value  of  his  services  during  the 
six  months  rendered,  alleging  the  foregoing  facts. 

What  judgment  should  be  entered? 


ANNUAL  EXAMINATIONS,  1898-99.  49 

VIII. 

The  X  corporation  having  issued  all  the  stock  permitted  by 
its  charter,  voted  illegally  to  issue  additional  stock  contrary  to  the 
statutes  regulating  corporations  in  this  respect.  A  subscribed 
for  ten  shares  of  such  additional  stock,  and  paid  in  on  account  of 
his  subscription  fifty  per  cent,  being  $500.  Before  any  stock  had 
been  issued  to  him,  A  repudiated  the  subscription  and  demanded 
his  money  back,  which,  being  refused,  he  now  sues  for,  alleging 
the  foregoing  facts. 

What  judgment  should  be  entered? 

IX. 

By  a  contract  between  A  and  B  it  was  agreed  that  A  should 
manufacture  and  deliver  to  B  100  bicycles  each  month  for  twelve 
months,  at  $30  per  bicycle,  payment  to  be  made  monthly.  After 
deliveries  and  payments  therefor  made  for  three  months,  B,  mis- 
takenly believing  that  A  had  delivered  defective,  worthless 
bicycles,  repudiated  the  contract.  The  bicycles  cost  A  $40  a 
piece  to  make,  and  were  worth  in  the  market  $35.  A  sues  B  for 
$1,500,  alleging  the  foregoing  facts. 

What  judgment  should  be  entered? 


X. 

A,  at  Cincinnati,  held  the  note  of  B  residing  at  Columbus 
for  $500,  due  June  i,  1898,  for  goods  sold  and  delivered  by 
A  to  B.  On  May  29  A  deposited  the  note  for  collection  in  the 
Fourth  National  Bank  at  Cincinnati,  and  that  bank  transmitted 
it  for  collection  to  the  Deshler  Bank  at  Columbus.  The  latter, 
sent  it  to  the  Clearing  House,  and  the  note  when  presented  at 
maturity,  June  i,  was  not  paid,  and  so  reported  to  the  Deshler 
Bank,  whose  officer,. however,  misread  the  report,  and  by  mistake 
informed  the  Fourth  National  Bank  that  the  note  was  paid,  and 
on  June  2  sent  it  $500  as  the  proceeds.  On  June  3  the  Fourth 
National  Bank  paid  the  $500  to  A.  On  the  4th  of  June  the 
Deshler  Bank  discovered  its  mistake;  offered  A  to  return  the 
note,  and  demanded  repayment  of  the  $500,  which  A  refused; 
it  now  sues  A,  alleging  the  foregoing  facts.  A,  as  a  first  defense, 


LAW    DKI'AKTMKNT  Of   THK   t'XIVKRSITY   OH   CINCINNATI. 

alleges  that  the  mistake,  if  any,  of  the  plaintiff  was  due  solely  to 
the  negligence  of  its  own  officers  and  servants.  As  a  second 
defense,  he  says  that  the  goods,  the  consideration  of  the  note  in 
question,  were  obtained  by  B  through  false  representations  as  to 
his  solvency  made  by  B  to  A;  that  on  June  2  A  was  informed 
that  B  was  contemplating  an  assignment  for  benefit  of  creditors, 
which  B,  in  fact,  did  make  on  June  4,  before  plaintiff's  demand 
on  defendant  of  repayment,  and  that  if  defendant  had  been  in- 
formed of  non-payment  of  the  note  at  maturity,  and  but  for  the 
payment  of  its  supposed  proceeds  to  defendant,  he  could  and 
would  have  secured  himself  by  attachment  of  B's  property  before 
the  latter' s  assignment.  To  each  defense  a  demurrer  is  filed. 
What  judgment  should  be  entered? 


SECOND  YEAR. 

PROCEDURE  IN  EQUITY. 


Mr.   Maxwell. 

I. 

Draw  a  bill  for  injunction  to  be  filed  in  a  Circuit  Court  of  the 
United  States. 

II. 

Draw  a  demurrer  to  the  bill  for  want  of  jurisdiction  and  for 
want  of  equity. 

III. 

A  bill  for  the  same  relief  brought  by  the  same  plaintiff  against 
the  same  defendant  is  pending  in  another  Circuit  Court  of  the 
United  States.  Is  that  a  defense?  If  so,  draw  the  proper  plead- 
ing to  present  it. 

IV. 

What  course  may  a  plaintiff  pursue  if  the  defendant  fails  to 
demur,  plead  or  answer?  State  the  procedure  fully. 

V. 

When  may  plaintiff  safely  go  to  hearing  on  bill  and  answer, 
and  when  not? 

VI. 

What  is  the  effect  of  a  failure  to  deny  a  material  allegation 
of  a  bill  in  equitj-?  What  is  the  effect  of  a  failure  to  deny  a 
material  allegation  of  a  declaration  at  common  law? 

VII. 

What  is  meant  by  an  answer  in  support  of  a  plea?  When  is 
it  necessary,  and  why?  If  not  filed,  what  is  the  plaintiff ' s 
course,  and  what  judgment  should  be  rendered? 

VIII. 

A  defendant  files  a  plea  setting  up  a  judgment  which,  as 
matter  of  law,  is  not  a  defense  to  the  bill.  What  course  should 
the  plaintiff  take,  and  what  decree  should  be  entered? 


52  LAW  DKPARTMKNT  OF  THK  UNIVERSITY  OF  CINCINNATI. 

IX. 

In  the  case  last  supposed  the  plaintiff  files  a  replication  to  the 
plea,  and  the  facts  alleged  in  the  plea  are  proved.  What  decree 
should  be  rendered  ?  State  what  the  former  rule  in  such  a  case 
was. 

X. 

What  is  a  petition  for  rehearing?  Within  what  time  must  it 
be  filed?  To  what  proceeding  at  common  law  is  it  analogous? 

XI. 

A  bill  in  equity  to  enforce  a  contract  between  the  plaintiff  and 
the  defendants  to  purchase  for  their  joint  benefit  the  bonds, 
secured  by  mortgages,  of  two  railroads,  of  one  of  which  the 
plaintiff  was  receiver,  and  of  the  other  general  manager  under  the 
trustees  in  the  mortgage,  alleged  that  he  performed  the  agree- 
ment on  his  part;  that  the  defendants  purchased  the  bonds 
through  an  agent  of  the  bondholders,  and  afterward  purchased 
the  railroads  under  decrees  of  foreclosure,  and  entered  into  pos- 
session and  made  large  profits,  and  refused  to  account  to  the 
plaintiff  for  his  share:  and  that  the  plaintiff,  pending  the  negotia- 
tions for  the  purchase  of  the  bonds,  informed  the  agent  of  the 
bondholders  of  his  interest,  and  at  all  times  answered  to  the  best 
of  his  knowledge  and  ability  all  inquiries  of  the  bondholders  or 
their  agent,  or  of  the  trustees  or  any  person  interested  in  the 
property,  and  always  acted  honestly  and  in  good  faith  toward  all 
such  persons.  The  defendants  filed  a  plea,  averring  that  neither 
the  agent  nor  the  bondholders  had  any  notice  of  the  plaintiff's 
interest  until  after  the  sale  of  the  railroads  under  the  decrees  of 
foreclosure,  and  that  the  agreement  sued  on  was  a  breach  of  his 
trusts  as  receiver  and  as  manager,  and  did  not  entitle  him  to 
relief  in  equity.  A  general  replication  was  filed,  and  at  the 
hearing  the  truth  of  the  fact  averred  in  the  plea  was  disproved. 
But  the  court,  being  of  opinion  that  the  contract  alleged  in  the 
bill  was  unlawful  and  void,  on  that  ground  sustained  the  plea  and 
dismissed  the  bill.  The  plaintiff  appeals. 

What  judgment  shall  be  rendered  and  why? 


SECOND  YEAR. 


JURISPRUDENCE. 

Mr.  Maxwell. 


I. 

What  is  a  legal  right  ?  How  is  it  distinguished  from  a  moral 
right  ? 

II. 

Name  the  essential  elements  of  a  legal  right? 

III. 
State  the  principal  classifications  of  legal  rights. 

IV. 

What  is  the  distinction  between  international  law,  public  law, 
and  private  law  ? 

V. 

What  \sjus  rerum  ?     Of  what  expression  is  it  an  abbreviation  ? 

VI. 

What  is  jus  personarum?  Of  what  expression  is  it  an 
abbreviation  ? 

VII. 

What  is  the  value  of  the  distinction  between  jus  rerum  and 
jus  personarum  ?  By  whom  was  the  distinction  first  suggested  ? 
In  what  way,  if  at  all,  was  the  distinction  misconceived  by  Sir 
Matthew  Hale  and  Blackstone? 

VIII. 
What  is  a  right  in  remf     Give  four  instances. 

IX. 
What  is  a  right  in  personam  f    Give  two  instances. 

X. 

From  what  are  remedial  rights  distinguished  and  how  are 
they  classified? 


SECOND  YEAR. 

EQUITY  JURISDICTION. 

Mr.   Cleveland. 

GIVK    REASONS    FOR    ANSWERS. 


Questions  relate  to  Equity  Jurisdiction,  without  reference  to 
modification  by  statute,  unless  otherwise  indicated. 

I. 

A,  an  owner  of  a  street  railway  franchise,  was  about  to  con- 
struct his  line  over  the  streets  of  the  city  under  his  grant.  He 
heard  that  B,  an  unsuccessful  applicant  for  the  same  privilege, 
disputed  the  validity  of  his  grant,  and  intended  to  apply  for  an 
injunction  to  restrain  such  construction  as  soon  as  it  was  begun. 
Anticipating  irreparable  damage  and  loss  from  such  an  attempt, 
in  case  the  work  was  once  commenced,  A  applied  to  a  court  of 
equity  to  enjoin  B  from  applying  for  an  injunction  after  the  work 
was  begun. 

Can  the  suit  be  maintained? 

II. 

A  railroad  company  was  required,  under  a  penalty,  by  the 
laws  of  the  State,  to  fence  its  right  of  way.  While  so  engaged, 
a  County  Board,  having  charge  of  the  public  roads,  notified  the 
railroad  company  that  a  highway  crossed  the  right  of  way  at  a 
certain  point,  and  that  if  the  employes  of  the  company  who 
were  building  the  fence  obstructed  the  same,  they  would  be 
prosecuted  for  obstructing  a  public  road.  The  railroad  denied 
the  existence  of  the  highway. 

Will  an  injunction  lie  to  restrain  the  board  from  carrying  out 
its  threat  ? 

III. 

A  brought  a  suit  against  B  to  set  aside  certain  conveyances 
he  had  made  to  B  upon  the  ground  that  they  were  procured  by 
fraud.  While  the  suit  was  pending,  B  circulated  a  libelous  state- 
ment in  reference  to  the  consideration  for  the  conveyances. 

Can  B  be  restrained  from  publishing  the  statement  ? 


ANNUAL  EXAMINATIONS,  189H-99.  55 

IV. 

Between  1830  and  1840  R.  M.  Bartlett  started  a  business  col- 
lege in  Cincinnati.  Thereafter,  for  twelve  years,  he  taught  the 
art  of  book-keeping,  using  a  manuscript  work,  of  which  he  was 
the  author,  for  that  purpose.  He  permitted  the  pupils  to  take 
copies  of  his  work  for  the  purpose  of  instructing  themselves,  but 
never  printed  the  work  for  general  circulation.  In  1849  he 
brought  a  suit  to  enjoin  a  former  pupil  from  publishing  a  sub- 
stantial part  of  the  work. 

Should  an  injunction  be  granted? 

V. 

While  insolvent,  and  intending  shortly  to  make  an  assign- 
ment, a  merchant  purchased  large  consignments  of  goods  on 
credit,  and  thereupon  executed  a  chattel  mortgage  covering  the 
goods  in  favor  of  a  bank  to  secure  a  debt.  Thereafter  he  made 
a  general  assignment  to  A  for  the  benefit  of  his  creditors.  The 
parties  who  had  sold  the  goods  immediately  brought  numerous 
replevin  suits  against  A  to  recover  their  respective  goods. 

You  may  assume  that  the  chattel  mortgage  was  taken  by  the 
bank  in  good  faith,  and  that  by  statute  it  was  permissible  to 
mortgage  chattel  property  and  still  retain  possession  of  the  same. 
You  may  also  assume  that  preferences  to  creditors  were  allowed. 

What  relief  can  a  court  of  equity  give?  To  whom?  By 
what  kind  of  a  bill  ? 

VI. 

a.  What  is  a  bill  of  interpleader,  and  under  what  conditions 
may  it  be  maintained  ? 

b.  How  does  a  bill  in  the  nature  of  a  bill  of  interpleader 
differ  from  a  bill  of  interpleader? 

c.  A  deposited  $1,000  in  bank  to  the  credit  of  B,  and  re- 
quested the  bank  to  notify  B  of  the  deposit,  which  it  did.     Before 
any  money  was  paid  out  to  B,  C  notified  the  bank  that  the  money 
belonged  to  him,  and  that  it  was  the  proceeds  of  a  sale  of  a  lot 
of  which  A  had  held  the  naked  legal  title  for  his  benefit.     A 
disputed  this. 

Can  the  bank  file  a  bill  of  interpleader  against  A,  B,  and  C? 


LAW  DKPARTMKNT  OP  THK  I'NIVKRSITV  OF  CINCINNATI. 

VII. 

A  gave  B  a  power  of  attorney  to  sell  a  house  and  lot  at  any  time 
within  six  months  for  $5,000.  Before  the  six  months  expired  B 
notified  A  he  had  found  a  purchaser,  but  refused  to  divulge  his 
name,  although  A  offered  to  make  a  deed  if  he  would  produce 
the  contract.  As  a  matter  of  fact,  B  had  given  C,  in  considera- 
tion of  $100  paid,  an  option  to  purchase  the  property  for  $5,000 
at  any  time  within  one  year.  After  the  six  months,  and  within 
the  year,  C  demanded  a  conveyance  from  A,  tendered  the  $5.000, 
and,  on  his  refusal,  brought  a  suit  for  specific  performance,  rely- 
ing upon  the  option.  The  case  was  never  brought  to  a  trial,  but 
allowed  to  stand.  A  filed  a  bill  against  C  to  quiet  his  title,  set- 
ting up  the  above  facts.  A  demurrer  to  the  bill  was  sustained. 

Is  fhe  ruling  correct? 

VIII. 

a.  What  is  the  difference  between  waste  of  and  trespass 
upon  real  estate? 

b.  The  testator  devised  land  to  A  B  in  fee,  but  provided  that, 
if  he  should  die  without  leaving  issue  at  the  time  of  his  decease, 
then  to  C  D  for  life  without  impeachment  of  waste;  remainder  to 
E  F  in  fee. 

The  testator  and  C  D  died,  and  A  B  entered  into  possession, 
and  at  the  time  the  bill  was  filed  was  cutting  down  timber,  both 
ordinary  and  ornamental,  and  selling  the  same.  E  F  applied  for 
an  injunction  to  restrain  A  B  and  for  an  accounting. 

Was  he  entitled  to  anv  relief? 


IX. 

The  owner  of  land  bordering  upon  a  stream  of  water,  which 
had  always  been  clear,  opened  a  quarry.  In  time  of  freshets  the 
refuse  from  the  quarry  washed  down  into  the  stream  and  discol- 
ored it.  The  stream  was  owned  by  and  was  a  source  of  the  water 
supply  of  a  neighboring  city.  The  city  sought  to  enjoin  the 
owner  who  had  opened  the  quarry  from  continuing  to  maintain  it 
in  such  form  as  would  produce  the  above  results. 

Is  the  city  entitled  to  the  relief  sought? 


ANNUAL  EXAMINATIONS,  1898-99.  57 

X. 

Upon  vacant  property  abutting  upon  a  street,  there  was 
standing  a  large  tree,  some  of  the  branches  of  which  overhung  a 
sidewalk,  and  had  become  rotten  and  dangerous  to  passers  by. 
The  owner,  who  lived  in  an  adjoining  State,  having  failed  to 
remove  the  branches,  a  person  in  the  habit  of  passing  along  the 
sidewalk  brought  a  suit  in  the  adjoining  State  to  enjoin  the  owner 
of  the  property  from  maintaining  the  tree  in  its  dangerous  condi- 
tion, and  to  require  the  owner  to  remove  the  rotten  branches.  A 
demurrer  to  the  bill  was  overruled. 

Was  the  ruling  correct  ? 

XL 

A  sold  to  B  a  certain  number  of  shares  of  stock  in  a  mining 
company  for  a  certain  price,  and  as  part  of  the  contract  of  sale 
agreed  to  repurchase  the  same  at  any  time  within  six  months,  at 
the  same  price  for  which  he  sold  them.  On  the  last  day  of  the 
six  months  he  tendered  the  stock  and  demanded  the  price.  A 
refused  to  repurchase  the  same. 

a.  Under  what  circumstances,  if  any,  will  equity  grant  relief? 

b.  If  B  had  made  his  demand  within  a  week  after  the  six 
months,  would  it  have  made  any  difference? 

XII. 

A  gas  company  entered  into  a  contract  to  deliver  to  a  con- 
tractor, for  the  consideration  of  $500  a  year,  all  the  tar  made  by 
the  company,  and  not  wanted  by  it  for  a  specific  purpose,  from 
time  to  time  as  made  and  called  for  by  the  contractor  during  the 
term  of  five  years  and  for  the  renewal  of  the  contract  at  the  end 
of  that  period  for  another  like  term.  In  case  of  refusal  to  renew, 
the  contract  provided  that  the  company  should  refund  the  pay- 
ments made  for  the  last  year.  During  the  last  year,  and  after 
the  contractor  had  paid  $400  of  the  consideration  for  that  year, 
the  company  refused  on  the  demand  of  the  contractor  to  renew. 
Thereupon,  the  contractor  sought  to  specifically  enforce  the  con- 
tract, alleging  that  the  tar  was  absolutely  necessary  to  his  busi- 
ness, and  could  not  be  procured  elsewhere,  etc.  (154  U.  S.,  559.) 

Was  he  entitled  to  the  relief  sought  ? 


LAW  DKPART.MKNT  OP  THE  UNIVERSITY  OF  CINCINNATI. 

XIII. 

A  manufacturer  of  chemicals,  desiring  to  erect  a  factory  on 
the  banks  of  a  stream,  agreed  with  the  proprietor  of  land  lying 
below,  through  which  the  stream  ran,  to  lay  a  water  pipe  from 
a  point  above  the  factory  to  and  through  the  land  of  the  pro- 
prietor, in  case  the  water  became  unfit  to  drink  as  a  result  of 
carrying  on  the  business  contemplated.  The  water  did  become 
unfit  to  drink.  The  manufacturer  refused  to  construct  the  pipe. 
On  a  bill  filed  seeking  a  specific  performance  of  the  contract,  or 
in  the  alternative  an  injunction  to  restrain  the  further  pollution 
of  the  stream  and  general  relief,  what  decree  would  you  render? 


XIV. 

a.  A  entered  into  a  contract  with  B  to  sell  him  certain  land 
for  a  certain  price.     A  signed  the  contract  —  B  did  not.     Can  the 
contract  be  specifically  enforced  at  the  suit  of  either  party? 

b.  If  A  and  B  died  intestate  without  having  in  any  way  per- 
formed, to  whom  would  A's  and  B's  interests  respectively  pass? 

c.  If  A  had  entered  into  an  oral  contract  with  C  to  convey 
the  land  to  him,  prior  to  his  contract  with  B,  and,  after  entering 
into  the  contract  with  B,  had  conveyed  to  C,  could  B  have  his 
contract  enforced  against  C  ? 

XV. 

a.  A  contract  for  the  sale  of  real  estate  provided  that  the 
sale  should  be  completed  within  six  months  from  date,  at  which 
time  the  vendee  should  receive  his  deed  and  pay  one-half  of  the 
purchase  money  in  cash,  and  for  the  other  half  should  give  his 
note,  payable  in  six  months,  bearing  interest,  secured  by  mort- 
gage on  the  premises.  At  the  time  named  for  completion  the 
vendee  was  not  ready  and  nothing  was  said  or  done  in  reference 
to  the  matter.  Two  weeks  thereafter  the  vendee  offered  to  pay 
the  entire  purchase  money  in  cash,  with  interest  for  two  weeks, 
and  tendered  that  sum  and  demanded  of  the  vendor  a  deed.  The 
vendor  refused  to  complete.  The  vendee  sought  specific  per- 
formance of  the  contract. 

Was  he  entitled  to  the  relief? 


ANNUAL  EXAMINATIONS,  1898-99.  59 

b.  When  a  contract  for  the  sale  of  real  estate  does  not  specify 
any  time  for  completion,  how  long  has  the  vendor  or  vendee  in 
which  to  enforce  specific  performance  ? 

XVI. 

A  contract  for  the  sale  of  real  estate  was  entered  into,  to  be 
completed,  at  any  time  within  a  year  from  date,  on  the  tender  of 
a  general  warranty  deed  by  the  vendor  and  payment  of  the  pur- 
chase price  by  the  vendee.  The  deed  was  tendered  \vithin  a 
week  after  the  date  of  the  contract,  but  in  the  meantime  an  eject- 
ment suit  had  been  brought  against  the  vendor.  The  vendee 
refused  to  perform.  Thereupon  the  vendor  brought  suit  for 
specific  performance.  After  this  suit  was  filed,  but  before  the 
hearing,  the  ejectment  suit  was  decided  in  favor  of  the  vendor. 

Was  the  vendor  entitled  to  a  decree  for  specific  peformance? 

XVII. 

a.  Under  what  circumstances  will  a  court  decree  specific  per- 
formance, with  compensation? 

b.  Give  a  case  illustrating  how  the  doctrine  of  compensation 
is  applied. 

XVIII. 

a.  A  contract  in  writing  for  the  purchase  of   a  farm   for 
$15,000,  less  a  mortgage  of  $9,500,  provided  that  the  purchaser 
was  to  convey  certain  property  worth  $7,600  and  pay  $5,400. 

Is  the  contract  enforceable  ? 

b.  A  and  B  entered  into  a  contract  of  partnership.     A  was 
to  supply  the  capital  and  B  w?as  to  manage  the  business.     B 
thereupon  entered  upon  his  duties,  but  A  failed  to  supply  all  of  the 
capital  as  agreed.     B  brought  a  suit  to  compel  A  to  furnish  the 
money  as  agreed,  and  the  court  refused  the  relief  and  sustained 
a  demurrer  to  the  bill. 

Was  the  ruling  of  the  court  correct  ? 


SECOND  YEAR. 


AGENCY. 

Mr.  Barton. 

I. 

A  statute  made  it  a  misdemeanor,  punishable  by  fine  of  not 
less  than  one  nor  more  than  twenty-five  dollars,  to  sell  adulter- 
ated milk.  Nothing  was  said  as  to  knowledge  or  intent. 

The  defendant  was  prosecuted  for  a  violation  of  this  statute. 
He  admitted  the  sale,  but  offered  evidence  tending  to  show  that 
the  milk  was  carelessly  adulterated  by  his  servant,  whom  he  had 
expressly  cautioned  to  take  care  that  nothing  of  the  sort  should 
be  done,  and  that  he,  defendant,  was  personally  wholly  blame- 
less. He  asked  an  instruction  that  if  this  evidence  were  believed 
he  should  be  acquitted. 

Should  the  instruction  have  been  given,  and  why? 

II. 

The  party  to  whom  the  adulterated  milk  was  sold  and  deliv- 
ered had  contracted  for  pure  milk.  He  sued  defendant  for  dam- 
ages for  breach  of  the  contract.  Defendant  proved  that  the  milk 
was  adulterated  by  his  servant  contrary  to  his  own  express  direc- 
tions, and  for  the  sole  purpose  of  injuring  the  defendant,  and  that 
he,  defendant,  was  personally  wholly  blameless.  Plaintiff  proved 
that  he  had  sustained  damage. 

These  facts  being  true,  what  should  the  judgment  have  been? 
Give  reasons. 

III. 

X,  while  insane,  gave  Y  a  power  of  attorney  under  seal,  before 
any  statutory  changes  had  been  made  as  to  the  law  applicable  to 
sealed  instruments,  which  by  its  terms  authorized  Y  to  sell  and 
deliver  to  the  purchaser  six  horses  belonging  to  X,  for  twelve 
hundred  dollars.  Y,  acting  under  this  power,  sold  and  delivered 


ANNUAL  EXAMINATIONS,  1898-99.  61 

the  horses  to  D  for  the  sum  agreed  upon,  and  received  the  pur- 
chase money.  D  had  some  years  before  known  X,  when  he  was 
sane,  and  was  wholly  ignorant  of  the  fact  that  he  had  become 
insane.  X  afterwards  regained  his  reason  and  brought  an  action 
in  replevin  against  D  to  recover  the  horses  or  their  value  as 
damages.  D  pleaded  the  power  of  attorney  under  seal  (on 
which  he,  D,  had  relied,  and  of  which  he  had  first  heard  when  Y 
had  shown  it  to  him  at  the  time  of  the  purchase),  the  payment 
of  the  purchase  money  in  good  faith  to  Y,  and  the  further  fact 
that  Y  refused  to  restore  the  money  to  D,  but  still  held  it,  and 
was  willing  to  turn  it  over  to  X,  who  refused  it,  and  that  X  had 
made  no  offer  to  reimburse  D  any  part  of  the  twelve  hundred 
dollars. 

Upon  these  facts  who  should  have  had  judgment,  and  why  ? 

IV. 

An  agent  for  the  owner  of  a  note  and  mortgage  took  new 
notes  for  the  debt,  and  in  consideration  of  their  being  signed  by 
the  brother  of  the  maker,  as  surety,  who  was  not  a  party  to  the 
former  note,  agreed  (without  the  authority  of  his  principal)  to 
cancel  the  mortgage.  The  new  notes  were  delivered  to  the 
principal,  who  was  then  informed  of  the  arrangement  as  to  the 
cancellation  of  the  mortgage,  and  who  declared  to  the  agent  that 
he  did  not  approve  it.  At  their  maturity  the  owner  brought  suit 
upon  the  new  notes,  and  recovered  a  judgment  against  both  the 
maker  and  the  surety. 

He  then  brought  an  action  to  enforce  the  mortgage,  which  at 
the  time  was  improperly  canceled. 

For  whom  should  the  judgment  have  been  in  the  mortgage 
suit,  and  why? 

V. 

Defendants  were  wholesale  dealers  in  cotton  goods  at  Vicks- 
burg,  and  had  in  their  service  as  a  salesman  and  traveling  agent 
one  Henderson,  who  was  hired  by  the  year  on  a  salary.  Hen- 
derson's duties  required  him  to  stay  in  the  store  or  travel,  solic- 
iting orders  for  goods  and  making  collections,  as  his  employers 
might  direct.  When  in  the  store  he  paid  his  own  board ;  when 


61'  I.AXV    DKI'AKTMKNT   OK   THK   I'NIVKKSITV   OH   CINCINNATI. 

traveling,  his  expenses  were  allowed  to  him  and  paid  by  his 
employers.  At  the  time  of  the  transaction  in  controversy  he 
was  traveling  under  his  employment  with  defendants,  but  he  had 
no  particular  instructions,  nor  was  he  under  any  orders  as  to  the 
roads  or  routes  of  travel  he  should  adopt.  At  Meridian,  without 
disclosing  his  principals,  he  hired  of  B  &  Co.,  who  were  livery- 
stable  keepers,  a  team  and  buggy  to  go  to  Decatur  and  Hillsboro. 
At  Hillsboro,  while  the  horses  were  standing  in  front  of  a  store 
in  which  Henderson  was  doing  business,  they  took  fright,  and 
because  he  had  negligently  failed  to  hitch  them,  ran  away,  injur- 
ing X,  who  was  passing  along  the  street,  and  causing  damage  to 
the  buggy,  harness,  and  one  of  the  horses. 

X  sued  defendants,  claiming  Henderson  was  their  servant, 
and  that  they  were  liable  for  the  damages  X  had  sustained. 

Did  X  have  a  good  cause  of  action  ?     Give  reasons. 

VI. 

B  &  Co.,  in  the  case  above  stated,  sued  defendants  for  the 
damage  to  the  buggy,  harness,  and  horse.  It  appeared  that  the 
contract  between  them  and  Henderson  was  in  writing,  and  was 
made  in  the  name  of  B  &  Co.  and  of  Henderson,  no  reference 
being  made  to  any  other  person.  B  &  Co.  had  no  knowledge 
until  after  the  accident  that  defendants  were  Henderson's 
employers,  and  before  they  learned  of  this  fact,  had  gotten  judg- 
ment on  the  same  claim  against  Henderson,  no  part  of  which 
had  been  paid.  Defendants  claimed  that  under  these  circum- 
stances they  were  not  liable. 

Was  this  a  good  defense  ?     Give  reasons. 


VII. 

A  was  a  section  boss  on  a  railway  at  a  point  between  Toledo 
and  Columbus,  Ohio,  and  had  four  section  men  working  under 
his  directions.  While  moving  a  hand-car  from  the  tracks  of  de- 
fendant company,  who  was  their  common  employer,  A  negli- 
gently caused  it  to  fall  against  C,  one  of  the  four  section  men, 
severely  injuring  him.  In  an  action  by  C  against  the  company 
for  damages,  in  a  Common  Pleas  Court  in  the  State  of  Ohio, 


ANNUAL  EXAMINATIONS,  1898-99.  63 

defendant  claimed  that  it  was  not  liable,  because  in  doing  the 
work  at  which  they  were  engaged  when  the  injury  occurred  A 
and  C  were  fellow  servants,  and  the  court  so  instructed  the  jury. 
There  was  a  verdict  for  the  defendant,  and  C  moved  for  a  new 
trial,  claiming  error  as  to  this  instruction. 

What  is  the  law  applicable  to  the  point  raised  by  the  motion  ? 


VIII. 
A  note  was  executed  in  the  following  form : 

ZANESVILLE,  O.,  May  15,  1898. 

Thirty  days  after  date  I  promise  to  pay  Smith  Andrews  or  order,  two 
hundred  dollars,  value  received. 

For  PHILIP  JENKINS,  HENRY  POWERS. 

The  debt  not  being  paid  when  due,  Andrews  sued  Powers  on 
the  note  in  the  Court  of  Common  Pleas  of  Muskingum  County, 
Ohio.  The  answer  was  a  general  denial.  Plaintiff  offered  the 
note  in  evidence  and  proved  that  Jenkins  knew  nothing  of  it,  and 
that  Powers  had  never  been  his  agent  for  any  purpose. 

For  whom  should  judgment  have  been  given  ?  What  is  the 
law  applicable  to  the  state  of  facts  made  by  plaintiff's  evidence? 


IX. 

A,  at  Cincinnati,  and  B,  at  Dayton,  were  engaged  during  a 
period  of  six  months  in  a  series  of  gambling  transactions  which 
were  forbidden  by  statute.  A  was  the  winner,  and  on  final  settle- 
ment there  was  found  to  be  due  him  as  such  winner  eighteen 
hundred  dollars.  He  telegraphed  C,  his  agent  at  Hamilton,  to 
go  to  Dayton  and  get  the  money  from  B.  C  did  so,  but  refused 
to  pay  it  to  A,  claiming  that  the  transactions  between  A  and  B 
were  illegal,  and  that  A  had,  therefore,  no  right  to  the  money. 
A  sued  him  for  the  amount.  C  filed  a  cross-petition,  alleging 
that  he  had  employed  A  to  negotiate  for  him  at  Columbus  certain 
wagering  contracts  with  D  on  the  price  of  wheat,  and  had  in- 
structed A  from  time  to  time  how  to  proceed,  but  that  A  had  in- 
tentionally failed  and  neglected  to  make  any  such  wagering  con- 


04  LAW  DKPARTMKXT  OF  THF.  I'NIVKKSITV  OF  CINCINNATI. 

tracts  with  I),  although,  had  they  been  made,  the  net  profit  to  C 
would  have  been  fifteen  hundred  dollars. 

What  is  the  law  applicable  to  the  case  made  (a)  on  the  peti- 
tion, and  (/>)  on  the  cross- petition  ? 

X. 

A  and  B  were  employed  to  work  together  in  a  lumber  yard  at 
Troy,  Ohio,  X  being  their  common  employer.  While  lifting 
some  boards  from  a  wagon,  A,  without  fault  on  his  part,  was  in- 
jured by  the  carelessness  of  B,  against  whom  he  brought  an 
action  for  damages  in  the  Common  Pleas  Court  at  Troy.  B's 
counsel  claimed,  by  way  of  defense  — 

a.  That  if  A  and  B  were  fellow  servants,  neither  was  liable 
for  the  negligence  of  the  other,  and 

/>.  That  if  B  was  A's  superior,  having  the  right  to  direct  and 
control  the  movements  of  A,  then  X  and  he  alone  was  liable,  and 
asked  the  court  so  to  instruct  the  jury  upon  both  points. 

What  was  the  proper  action  for  the  court  to  have  taken  as  to 
each  instruction  requested?  Why? 


SECOND  YEAR. 

PROPERTY, 

Judge  Taft. 

GIVE   FULL   REASONS   FOR   EACH   ANSWER. 


I. 

At  common  law  A  seized  in  fee,  gives  livery  of  seisin  of 
Blackacre  to  B  for  life,  remainder  to  C  in  fee.  B  gives  livery  of 
seisin  to  D  for  life,  remainder  to  E  for  life,  remainder  to  F  and 
the  heirs  of  his  body.  E  grants  his  estate  to  G  and  his  heirs. 

Who  are  seized  of  what  estates  in  possession,  remainder  or 
reversion  in  Blackacre? 


II. 

A  and  B  bought  adjoining  tracts  of  land  from  C.  Twenty- 
three  years  afterward  A  sued  B  in  ejectment  for  a  strip  three  feet 
wide,  of  the  depth  of  the  lots  and  lying  between  them.  B 
pleaded  the  twenty  -  one  years  statute  of  limitations.  The 
evidence  showed  that  the  strip  was  in  A's  lot  as  described  in  C's 
deed  to  A,  but  that  by  mistake  A  had  permitted  B  to  occupy  it 
and  fence  it  in  with  his  lot.  There  was  a  conflict  of  evidence 
upon  the  point  whether  B  was  also  mistaken  as  to  the  proper 
division  line.  The  court  charged  the  jury,  that  if  B's  continued 
occupation  of  the  strip  had  been  by  mistake,  the  plaintiff  could 
recover. 

Was  this  error? 

III. 

In  1810  A  procured  a  patent  to  himself  and  his  heirs  for 
Blackacre  from  the  State  of  Tennessee.  B  procured  a  patent  to 
himself  and  his  heirs  from  the  State  for  Whiteacre  in  1820; 
Whiteacre  and  Blackacre,  as  described  in  the  patents  when 
actually  surveyed,  overlapped,  so  that  Redacre,  a  tract  of  120 
acres,  was  within  both  patents.  A  enclosed  and  actually  occupied 


6tt  LAW  DKPARTMKNT  OK  THK  TNIVKRSITV  OK  CINCINNATI. 

a  tract  often  acres  in  Blackacre.  not  within  the  limits  of  Redacre. 
B  enclosed  and  occupied  ten  acres  within  the  limits  of  Redacre 
for  more  than  seven  years,  the  period  within  which  suits  in  eject- 
ment must  be  brought  in  Tennessee.  Thereafter  B  enclosed  the 
whole  1 20  acres  in  Redacre  and  A  at  once  brought  ejectment  to 
recover  the  whole  of  Redacre.  B  pleaded  the  statute  of  limita- 
tions. 

What  judgment  should  l>e  entered  ? 


IV. 

A  and  B  owned  houses  which  had  adjoined  for  fifty  years,  and 
the  dependence -of  B's  house  on  A's  was  obvious.  A.  after  giv- 
ing notice  to  B,  took  down  his  house,  and  B's  house  fell.  B  sued 
A  in  trespass  on  the  case  for  his  damage.  On  the  trial  A  offered 
to  show  that  neither  by  deed  nor  covenant  had  he  or  his  prede- 
cessors in  title  given  to  B  an  easement  of  support.  The  court 
declined  to  receive  the  evidence,  and  directed  the  jury  to  bring 
in  a  verdict  for  the  plaintiff  for  a  sum  equal  to  his  loss. 

Were  the  ruling  and  direction  right?  Answer  both  according 
to  English  and  American  law,  and  give  reasons  in  full. 


V. 

A  filed  a  plat  of  his  land  in  the  County  Recorder's  office,  by 
due  acknowledgment  of  which  he  purported  to  convey  to  the 
city  of  Cincinnati  the  fee  in  the  streets  shown  thereon  for  public 
purposes.  Such  a  dedication  was  by  statute  inoperative  unless 
accepted  by  the  City  Council.  He  then  sold  a  lot  described  a.s 
bounded  upon  Ada  Street,  one  of  the  platted  streets,  to  B.  There- 
after the  City  Council  refused  to  accept  the  grant  of  Ada  Street 
in  the  plat  and  A  thereupon  fenced  up  Ada  Street,  sides  and  ends. 
B  brought  ejectment  against  A  for  one-half  of  the  land  in  Ada 
Street,  lying  immediately  in  front  of  the  lot  sold  him,  and  filed  a 
bill  in  equity  to  enjoin  A  from  closing  the  ends  of  the  street  and 
preventing  his  egress  thereby  to  the  traveled  highway. 

What  judgment  would  you  enter  in  the  ejectment  suit,  and 
what  decree  on  the  bill  in  equity? 


ANNUAL  EXAMINATIONS,  1898-99.  67 

VI. 

A  owned  a  tract  of  land  with  a  house  on  it.  A  path  led  from 
the  house  to  a  well  on  the  land,  from  which  the  house  was  sup- 
plied with  water.  He  sold  to  B  a  part  of  the  land  with  the  house 
upon  it,  by  deed  conveying  with  the  land  "  all  the  privileges  and 
appurtenances  thereto  belonging."  The  well  was  on  the  part  re- 
tained by  A.  Did  B  have  a  right  to  use  the  well  f 


VII. 

A  conveys  land  to  B  with  covenant  of  general  warranty.  B 
is  ousted  by  C  having  a  paramount  title.  B  brings  covenant 
against  A.  A  buys  C's  title  before  trial  and  seeks  thereby  to 
limit  B's  damages  to  the  actual  loss  attending  ouster  and  the 
mesne  profits  of  the  land,  contending  that  the  purchase  price  of 
the  land  should  not  be  included  therein. 

Should  his  contention  be  sustained  ? 


VIII. 

A  conveyed  land  to  B  and  his  heirs  with  covenant  of  general 
warranty ;  B  conveyed  it  without  covenant  to  C  and  his  heirs. 
Thereafter,  and  during  C's  lifetime,  the  widow  of  a  predecessor 
of  A  in  title  had  dower  assigned  in  the  land  to  her.  C  died  after 
having  devised  the  land  to  D. 

Who,  if  any  one,  can  sue  A  for  his  breach  of  warranty  of 
title. 

IX. 

Whiteacre,  Redacre,  and  Blackacre  are  square  tracts  of  land 
lying  side  by  side,  Whiteacre  on  the  west,  Redacre  next,  and 
Blackacre  on  the  east.  A  non-navigable  stream  runs  north  and 
south  through  Whiteacre.  By  imperceptible  degrees  the  stream 
creeps  eastward  until  it  is  half  way  across  Blackacre.  Then  it 
returns  in  the  same  manner  to  its  former  position  in  Whiteacre. 

What  changes,  if  any,  in  title  to  the  land  included  in  the 
three  lots  are  effected  by  the  changes  in  the  stream? 


68  LAW  DEPARTMENT  OK  THK  UNIVERSITY  OK  CINCINNATI. 

X. 

A  signed,  sealed,  and  acknowledged  a  deed  of  land  to  B,  and 
after  it  was  duly  witnessed  handed  the  same  to  C,  the  notary, 
wfth  directions  to  put  it  in  his  safe  and  keep  it.  B  was  then  in 
the  army  of  Cuba  and  died  of  yellow  fever,  without  knowledge 
of  the  deed,  and  intestate.  When  A  heard  of  B's  death  he  went 
to  the  notary  and  said  to  him :  "  When  I  gave  you  the  deed  I 
then  intended  to  give  the  land  to  B,  but  now  that  he  is  dead  I 
shall  dispose  of  it  by  will."  The  notary  returned  the  deed  to  A, 
who  destroyed  it.  B's  heir  brings  ejectment  against  A. 

For  whom  would  you  give  judgment  ? 

XL 

A  died  intestate  and  a  bachelor,  leaving  the  estate  of  Fair 
Oaks,  which  he  had  acquired  by  purchase.  He  was  at  his  death 
the  only  child  of  his  father  and  mother,  who  survived  him.  His 
father  had  one  brother  and  one  sister  then  living.  His  mother 
also  had  a  brother  and  a  sister  living.  Two  years  after  his  death 
a  daughter  was  born  to  the  father  and  mother,  and  four  years 
after  a  second  son  was  born. 

How  would  the  property  have  descended  at  common  law? 
How  in  the  State  of  Ohio? 

XII. 

Lease  of  land  to  A  for  the  life  of  B.  A  dies,  living  B.  Who 
was  entitled  to  land  after  A's  death  and  during  life  of  B  at  common 
law?  If  the  lease  had  been  to  A  and  his  heirs,  would  the  result 
have  been  different? 

(Assume  in  following  questions  a  statute  of  wills  to  be  in 
force,  like  the  statute  of  frauds,  with  a  clause  requiring  wills  of 
personalty  to  be  witnessed  and  attested  by  two  credible  wit- 
nesses.) 

XIII. 

By  will  duly  executed,  a  testator  bequeathed  $5,000  to  those 
of  his  children  whom  lie  should  thereafter  send  to  college,  and 
$10,000  apiece  to  those  whom  he  should  associate  with  himself  in 
business,  and  $15,000  to  those  whose  names  he  should  mention 
in  a  letter  to  his  executor. 

Which,  if  any,  of  the  bequests  are  good? 


ANNUAL  EXAMINATIONS,  1898-99.  69 

XIV. 

A  testator  asked  three  persons  to  witness  his  will  of  real 
estate,  and  exhibited  to  them  the  instrument.  He  was  called  out 
of  the  room  for  a  short  time,  during  which  one  of  the  persons 
signed  his  name.  The  testator,  returning,  signed  the  will  in  the 
presence  of  all  of  them.  The  other  two  persons  then  signed 
their  names  to  the  will,  and  the  first  witness  called  attention  to 
the  fact  that  he  had  already  signed  it. 

Was  the  heir  or  the  devisee  entitled  to  the  land  described  in 
the  will? 

XV. 

A  will  read  thus:  "I  give  Seven  Oaks  to  B  and  his  heirs. 
Until  A  died,  I  had  intended  to  give  it  to  him.."  A  was  not 
dead,  and.  upon  testator's  death  brought  ejectment  against  B  for 
Seven  Oaks. 

What  judgment  should  be  entered? 


XVI. 

A  will  originally  contained  this  clause  :  "  I  give  to  B  $5.000." 
Subsequently,  under  a  mistaken  belief  that  B  was  dead,  the 
testator  drew  a  line  through  the  name  B  and  wrote  the  name  C 
above  it,  and  through  the  figures  $5,000,  and  wrote  above  them 
$1,000. 

Who  is  entitled  to  the  legacy,  and  what  is  its  amount? 


XVII. 

"  I  give  to  my  servant  A  an  annuity  for  her  life  of  $100 ;  I  give 
to  B  all  the  registered  United  States  bonds  that  I  have  at 
my  death ;  I  give  $5,000  to  C,  the  income  to  be  paid  to  her 
during  life,  and  on  her  death  the  principal  to  be  distributed 
among  her  children ;  I  give  to  my  friend  D  $1,000;  all  the  resi- 
due of  my  estate,  real  and  personal,  I  give  to  E  for  life,  and  on 
his  death  to  his  children  in  equal  shares."  The  legatees  receive 
nothing  for  three  years  from  testator's  death.  What  interest,  if 
any,  is  then  due  to  each  legatee? 


70  LAW  DKPARTMKNT  OH  THK  I'MVKRSITY  OF  CINCINNATI. 

XVIII. 

A  assaulted  and  beat  B,  converted  his  horse,  and  cut  down  his 
trees.  B  died,  leaving  H  his  heir  and  E  his  executor. 

Who,  if  any  one,  can  bring  an  action  (i)  for  the  injury  to  B, 
(2)  for  the  conversion  of  his  horse,  (3)  for  the  cutting  of  his  trees? 


XIX. 

A  bought  Whiteacre.  It  was  encumbered  with  a  mortgage 
made  by  the  grantor  for  $3,000.  A  paid  part  cash  and  gave  a 
second  mortgage  on  the  land  for  §4,000,  the  remainder  of  the 
purchase  price.  By  his  will,  he  devised  Whiteacre,  which  was  all 
his  real  estate,  to  L  and  his  heirs.  He  gave  P  a  legacy  of 
$5,000,  and  the  residue  of  his  estate  he  gave  to  R  after  payment 
of  debts  and  legacies.  After  payment  of  debts,  other  than 
the  mortgages  and  expenses  of  administration,  the  latter  being 
$500,  A's  personal  estate  amounted  to  $7,000.  Administer  the 
assets. 

XX. 

Bequest  of  $6,000  "to  the  children  of  my  deceased  sister 
Mary."  Residuary  bequest  to  A.  F  was  next  of  kin  to  testator. 
At  time  of  will,  Mary  had  four  children,  B,  C,  D,  and  E.  E  died 
before  the  testator. 

To  whom  does  the  $6,000  go,  and  in  what  amounts?  Would 
the  result  be  different  if  the  bequest  had  been  "  to  the  four  chil- 
dren of  my  deceased  sister  Mary  ?" 


SECOND  YEAR. 


EVIDENCE. 

Judge  Sayler. 


I. 

A  sues  B  on  a  written  contract;  on  the  trial  it  appears  that 
the  written  contract  is  lost.  A  wishes  to  prove  its  contents  by 
parol  testimony. 

What  foundation  must  he  lay  before  he  may  do  so?  Who 
must  determine  whether  a  sufficient  foundation  is  laid — the 
Court  or  the  jury. 

II. 

A  was  indicted  for  uttering  a  counterfeit  ten-dollar  bill.  On 
the  trial  the  Prosecutor  offered  to  show  that  at  a  certain  time  and 
place  within  ten  days  before  he  uttered  this  bill,  he  had  uttered 
another  counterfeit  bill. 

Is  such  evidence  competent?     If  so,  for  what  purpose? 


III. 

a.  What  is  a  dying  declaration? 

b.  A  was  shot  by  B.     An  officer  visited  A  in  the  evening  of 
the  same  day,  and  found  him  lying  on  a  bed  suffering  from  the 
wound.     A  said  to  the  officer  that  he  knew  that  he  was  badly 
injured;    that  the  pain  was  very  great;    that  it  was  with  difficulty 
that  he  could  breath;    but  that  he  hardly  thought  that  he  would 
die.     Thereupon  A  made  a  statement  to  the  officer  giving  all  of 
the  circumstances  connected  with  the  shooting.     A  died  within  a 
few  minutes  after  the  statement  was  made.     On  the  trial  of  B  the 
Prosecutor  offered  this  statement  in  evidence  as  a  dying  declara- 
tion.    The  Court  ruled  that  it  was  competent. 

Was  there  error  in  this  ruling? 


72  I. AW  DKPAKTMKNT  OK  THK  I'SIVKRSITV  OF  CINCINNATI. 

IV. 

a.  State  generally  the  doctrine  of  tts  gestat. 

b.  The  conductor  of  a  railroad  train  found  A  standing  on  the 
platform  of  one  of  the  cars  and  demanded  his  fare.     A  refused 
to  pay;    thereupon  the  conductor  put  his  hand  against  him,  say- 
ing "  I  will  put  you  off  of  the  train,"  and  A  was  either  pushed 
off  or  fell  off  the  train  while  it  was  in  motion,  and  was  injured. 
B  saw  A  fall,  and  within  a  few  minutes  carried  him  to  the  side  of 
the  road,  and  A  then  told. B  what  had  happened.     A  sues  the 
railroad  company  for  damages.     A  offers  to  prove  what  the  con- 
ductor said  to  him  on  the  platform  AS  above,  and  also  what  be,  A, 
told  B  while  lying  on  the  side  of  the  road. 

Was  the  evidence  under  either  offer  competent  ? 

V. 

a.  What  is  meant  by  the  "burden  of  proof?" 

b.  A  is  run  over  by  a  car  of  the  street  railway  company,  and 
is  injured.     He  sues  the  company  for  damages.     The  question  is 
whether  the  motorman  of  the  company  was  negligent. 

On  whom  is  the  burden  of  proof  on  this  issue? 
The  company  pleaded  contributory  negligence  on  the  part  of 
A,  which  is  denied. 

On  whom  is  the  burden  of  proof  on  this  issue? 

c.  X  is  indicted  for  the  murder  of  Y.     On  the  trial  X  pleads 
insanity. 

On  whom  is  the  burden  of  proof  on  this  issue? 

VI. 

A  and  B  entered  into  written  contract  by  which  A  sold  a  horse 
to  B  to  be  delivered  in  ten  days  time;  by  the  contract  B  agrees 
to  pay  A  $150  for  the  horse  on  delivery.  B  tendered  the  $150  to 
A  and  demanded  the  horse,  but  A  refused  to  accept  the  money  or 
deliver  the  horse.  B  sues  A  for  damages  arising  out  of  the  viola- 
tion of  the  written  contract. 

a.  A  pleads  that  at  the  time  of  the  execution  of  said  written 
contract  it  was  understood  that  B  was  to  pay  $100  in  cash  and 
deliver  fifty  bushels  of  wheat  to  A  in  payment  for  the  horse,  and 


ANNUAL  EXAMINATIONS,  1898-9'J.  73 

that  A  refuses  to  comply  with  such  agreement.  A  offered  parol 
testimony  to  prove  this  oral  agreement. 

Is  such  testimony  competent  ? 

b.  Is  parol  testimony  competent  to  show  that  a  written  con- 
tract was  induced  by  fraud?  Give  reason  for  answer. 


VII. 

A  sues  B  on  a  contract  for  damages.  During  the  trial  it 
becomes  apparent  that  a  document  held  by  the  Governor  of  the 
State,  in  his  official  capacity,  is  material  to  the  issue,  and  would 
be  competent  evidence  on  behalf  of  A.  A  causes  the  Governor 
to  be  served  with  a  subpoena  duces  tecum  requiring  its  produc- 
tion. The  Governor  declined  to 'produce  it. 

What  power  has  the  Court  to  compel  compliance  on  the  part 
of  the  Governor  with  the  terms  of  the  writ  ?  Give  reasons  for 
your  answer. 

VIII. 

In  the  trial  of  a  case  in  which  A  was  plaintiff  and  B  was 
defendant,  C,  a  witness,  testified  on  behalf  of  A.  A  verdict  was 
rendered,  but  was  set  aside  by  the  Court.  On  the  second  trial,  it 
appeared  that  C  was  dead. 

Was  the  testimony  of  C  on  the  first  trial  competent  on  the 
second  trial?  If  so,  how  could  it  be  put  in  evidence? 


IX. 

a.  What  is  a  "confession?" 

b.  A  and  B  are  indicted  for  the  murder  of  C.     B,  under  a 
promise  of  the  Prosecuting  Attorney  that  he  shall  not  be  prose- 
cuted, makes  a  confession,  and  agrees  to  testify  on  behalf  of  the 
State  on  the  trial  of  A;   but  on  the  trial  of  A,  B  refuses  to  testify. 

May  the  State  proceed  and  try  B  on  the  indictment  ?  State 
reason  for  answer. 

Is  the  confession  of  B  competent  against  him  on  the  trial? 
State  reason  for  answer. 


74  LAW  DEPARTMENT  OF  THK  UNIVERSITY  OF  CINCINNATI. 

X. 

A  sues  B  on  a  promissory  note  purporting  to  be  executed  by 
B  to  A.     B  pleaded  that  the  signature  to  the  note  was  a  forgery. 

a.  C,  a  witness  for  the  plaintiff,  testified  that  he  had  never 
seen  B  write  his  name;    but  that  he  was  a  paying  teller  in  a  bank 
where  B  had  his  account,  and  that  during  the  preceding  five  years 
he  had  repeatedly  paid  out  money  upon  the  checks  of  B;  that  in 
his  opinion  the  signature  on  the  note  in  issue  was  the  signature 
of  B. 

Was  this  testimony  competent  ? 

b.  D,  an  expert  in  handwriting,  was  called  by  A.     The  sig- 
nature of  B  to  his  answer  in  the  case  was  shown  to  the  witness, 
and  he  was  asked  to  compare  it  with  the  signature  on  the  note, 
and  to  state  whether  they  were  "written  by  the  same  person.    The 
Court  sustained  an  objection  to  the  question. 

Was  there  error  in  this  ruling  ? 

c.  A  offered  to  submit  the  signature  of  B,  to  his  answer  in 
the  case,  with  the  signature  on  the  note,  to  the  jury  for  them  to 
make  a  comparison.     The  Court  sustained  an  objection  to  such 
proceeding. 

Was  there  error  in  this  ruling? 

d.  An  expert  was  called  as  a  witness  on  behalf  of  B;   there- 
upon B  wrote  his  name  in  the  presence  of  the  jury.     B's  attorney 
submitted  this  signature,  together  with  the  signature  on  the  note, 
to  the  expert  witness,  and  asked  him  to  state  whether  they  were 
written  by  the  same  person.     The  Court  overruled  an  objection, 
and  admitted  the  testimony. 

Was  there  error  in  this  ruling  ? 


SECOND  YEAR. 

SALES. 

Mr.   Benedict. 


(The  questions  are  to  be  answered  according  to  the  common  law 
of  England,  except  as  otherwise  indicated.  Give  your  reasons  for 
each  answer. ) 

I. 

Jones,  Smith   &  Co. 

The  referee  found  the  following  facts:  That  on  December 
28,  1877,  Henry  M.  Cutter,  a  member  of  the  firm  of  H.  M.  Cutter 
&  Co.,  cotton  brokers,  called  upon  the  plaintiff,  and  by  falsely 
and  fraudulently  representing  that  he  was  authorized  to  buy 
cotton  for  The  Freeman  Manufacturing  Company,  of  North 
Adams,  Mass.,  induced  the  plaintiff  to  sell  100  bales  of  cotton  to 
that  company.  By  representing  that  he  desired  to  ship  the 
cotton  immediately,  Cutter  procured  from  the  plaintiff  a  delivery 
order  upon  the  warehouse-man,  who  was  storing  the  cotton.  At 
the  warehouse  Cutter  had  the  cotton  weighed  and  marked  and 
laid  upon  a  truck,  tags,  with  the  name  and  numbers  of  the  mills, 
being  fastened  to  each  bale.  Cutter  stored  the  cotton  in  another 
warehouse,  and  took  out  receipts  therefor  from  the  keeper  of 
such  warehouse  in  his  own  name  first,  and  afterwards  in  the 
name  of  his  brokers.  Thereafter  the  defendants  purchased  the 
cotton  in  good  faith  and  for  value  through  their  brokers,  received 
the  warehouse-man's  receipts  therefor,  and  subsequently  shipped 
it  to  Liverpool. 

Plaintiff  was  guilty  of  no  negligence  in  any  of  the  transac- 
tions above  stated,  but  in  all  respects  exercised  due  care  and 
caution  therein,  and  all  his  acts  in  respect  thereto  were  in  the 
ordinary  course  of  business  in  the  sale  of  cotton  to  spinners 
through  the  medium  of  brokers.  Plaintiff  averred  that  the 
cotton  was  delivered  to  H.  M.  Cutter  &  Co.  for  the  sole  purpose 
of  being  shipped  and  delivered  to  The  Freeman  Manufacturing 
Company,  of  North  Adams.  Plaintiff  sued  defendants  for  the 
value  of  the  goods. 

Is  he  entitled  to  recover? 


76  LAW  DEPARTMENT  OF  THK  UNIVERSITY  OK  CINCINNATI. 

II. 

a.  What  is  a  sale?     What  are  the  leading  rules  .for  ascer- 
taining when  the  property  in  goods  passes  under  a  contract  of 
sale? 

b.  A  has  accepted  B's  order  for  goods.     A  ships  the  goods 
to  B,  taking  the  bill  of  lading  in  his  own  name.     Who  is  prinia 
fafir  the  owner? 

III. 

A  offers  B  $50  for  a  stack  of  hay  which  stands  on  B's  farm. 
B  accepts  the  offer.  Nothing  more  is  done.  Three  days  later, 
and  while  the  stack  is  still  standing  on  B's  land,  it  burns  up, 
without  the  fault  of  either  party.  B  sues  A  for  the  price,  which 
is  unpaid. 

Can  he  recover? 

IV. 

Seymour  sold  to  Call  a  separator,  taking  Call's  promissory 
note  for  the  agreed  price.  Contained  in  the  note,  and  as  a  part 
of  the  same  document,  was  this  condition :  '  The  express  con- 
ditions of  the  sale  and  purchase  of  the  separator,  for  which  this 
note  is  given,  are  such  that  the  title,  ownership  or  possession 
does  not  pass  from  said  Seymour  until  this  note,  with  interest,  is 
paid  in  full."  Seymour  delivered  possession  of  the  separator  to 
the  purchaser,  and  he  continued  to  use  it  for  some  time.  He 
sold  it  to  Smith  for  full  value,  who  had  no  notice  of  the  preced- 
ing transaction  between  Seymour  and  Call.  Smith  bought  dona 
fide,  paid  full  value,  and  believed  that  Call  was  the  owner.  Call 
never  paid  the  note,  which  is  now  long  past  due. 

Who  owns  the  separator  at  common  law  ?  Who  owns  the 
separator  under  the  law  of  Ohio? 

V. 

In  March,  1834,  the  defendant  employed  the  plaintiff,  a  car- 
riage maker,  to  build  a  sulky  for  him,  for  which  he  promised  to 
pay  $100.  In  June,  1834,  the  plaintiff,  having  built  the  sulky  in 
all  respects  according  to  contract,  took  it  to  the  residence  of  the 
defendant  and  told  him  that  he  delivered  it  to  him,  and  de- 
manded payment  in  pursuance  of  the  terms  of  the  contract. 


ANNUAL  EXAMINATIONS,  1898-99.  77 

The  defendant  refused  to  receive  the  carriage,  whereupon  the 
plaintiff  told  the  defendant  he  would  store  the  sulky  with  Mr. 
Wolf,  residing  in  the  neighborhood,  which  he  accordingly  did, 
and  in  July,  1834,  he  commenced  this  action  for  the  agreed  price. 
These  facts  were  all  proved  at  the  trial. 

Can  the  plaintiff  recover  in  the  action  at  common  law?  In 
Ohio  what  are  the  remedies  of  the  plaintiff,  the  builder  of  the 
sulky,  under  such  facts? 

VI. 

a.  What  is  the  right  of  stoppage  in  transitu?     When  does 
the  transitus  begin  and  end  ?     What  will  defeat  the  right  of  stop- 
page in  transitu  during  the  transitus  ? 

b.  What  is  a  bill  of  lading?     What  is  meant  by  the  state- 
ment that  a  bill  of  lading  is  a  symbol  of  the  goods,  and  what 
does  the  assignment  of  a  bill  of  lading  pass? 

• 

VII. 

A  purchased  goods  from  B  on  credit,  fraudulently  represent- 
ing that  he  was  worth  $10,000.  B  delivered  the  goods  to  A,  who 
sold  and  delivered  them  to  C.  C  surrendered  to  A  a  promissory 
note  he  held  against  him.  C  acted  bona  fide,  and  knew  nothing 
about  the  fraudulent  transaction.  B,  discovering  the  fraud, 
brought  replevin  against  C. 

Who  is  entitled  to  judgment  under  the  law  of  Ohio? 

VIII. 

A  thief  broke  into  a  warehouse,  and  stole  (i)  three  hogs- 
heads of  sugar;  (2)  a  bill  of  lading  for  ten  barrels  of  molasses, 
which  bill  had  been  endorsed  in  blank;  (3)  a  warehouse  receipt 
for  three  casks  of  rum,  which  warehouse  receipt  had  been  en- 
dorsed in  blank;  (4)  an  unmatured  negotiable  note,  which  had 
been  endorsed  in  blank  by  the  payee,  and  (5)  some  gold  and  sil- 
ver currency.  All  the  property  he  sold  to  various  persons,  who 
paid  full  value,  bona  fide,  without  notice.  He  paid  away  the  gold 
and  silver  money  to  X  for  certain  goods  he^bought  of  X. 

Who  is  the  owner  of  the  money  and  the  property? 


78  LAW  DKPAKTMKNT  OF  THE  UNIVKRSITY  OF  CINCINNATI. 

IX. 

A,  being  the  owner  of  a  certain  bill  of  lading  for  a  cargo  of 
salt  at  sea,  and  a  certain  warehouse  receipt  for  100  bales  of 
cotton  in  O's  warehouse,  sold  the  salt  to  B,  and  the  cotton  to  C, 
in  both  cases  on  credit,  assigning  and  delivering  the  bill  of 
lading  and  the  warehouse  receipt  to  B  and  C,  respectively.  B, 
for  advances  made,  pledged  the  salt  to  the  First  National  Bank, 
assigning  and  delivering  to  the  bank  the  bill  of  lading. 

C,  for  advances  made,  pledged  the  cotton  to  the  Fourth 
National  Bank,  assigning  and  delivering  the  warehouse  receipt. 
Nothing  else  had  been  done  by  any  of  the  parties,  when  both  B 
and  C  became  insolvent,  and  A,  being  unpaid,  notified  the  master 
of  the  vessel,  which  had  just  arrived,  not  to  deliver  the  salt  to 
the  First  National  Bank,  and  also  notified  O,  the  warehouse-man, 
not  to  deliver  the  cotton  to  the  Fourth  National  Bank. 

What,  if  any,  right  has  A?  What,  if  any,  right  has  each  of 
the  banks? 

X. 

What  does  the  1 7th  section  of  the  English  Statute  of  Frauds 
provide?  Is  that  section  of  the  statute,  or  any  similar  provision, 
in  force  in  Ohio?  State  the  provisions  of  the  4th  section  of  the 
English  statute  of  frauds.  Have  they  been  adopted  in  Ohio? 

A  offers  B  $50  for  10  trees  growing  on  B's  land.  B  accepts 
the  offer,  and  A  pays  B  $5  on  account.  There  was  no  writing. 
In  England,  where  the  Statute  of  Frauds  is  in  force,  what,  if  any, 
difference  does  it  make  whether  the  trees  are  realty  or  person- 
altv?  What,  if  any,  difference  does  it  make  in  Ohio? 


FIRST  YEAR. 

CONTRACTS. 

Mr.  Wald. 

GIVE   THE   REASON   FOR  YOUR  ANSWER   IN   EACH    INSTANCE. 


I. 

A,  who  had  been  robbed  of  $500,  offered  a  reward  of  $100  to 
be  paid  to  any  one  who  would  furnish  information  leading  to  the 
recovery  of  the  money  stolen.  B  acting  on  the  offer,  gave  infor- 
mation which  resulted  in  the  recovery  of  half  the  stolen  money. 
B  sues  A  alleging  the  foregoing  facts.  What  judgment  should 
be  entered  ? 

TI. 

A  writes  to  B,  saying:  "I  offer  to  furnish  you  coal  during 
the  ensuing  twelve  months  for  $3.00  per  ton."  B  answers:  "I 
accept  your  offer. ' '  B  takes  no  coal  from  A  during  the  year,  but 
buys  coal  from  others.  At  the  end  of  the  year  A  sues  B,  alleg- 
ing the  foregoing  facts.  What  judgment  should  be  entered  ? 

III. 

A  says  to  B,  if  you  will  never  many  X  I  will  give  you  a  thou- 
sand dollars.  Acting  on  this  offer,  B  refrains  until  his  death 
from  marrying  X.  B's  administrator  sues  A,  alleging  the  fore- 
going facts.  What  judgment  should  be  entered? 

IV. 

A  owes  B  $500  overdue.  B  owes  C  a  similar  sum,  payable 
when  B  shall  have  received  payment  from  A.  C  says  to  A,  if 
you  will  pay  B  the  $500  due  him  I  will  give  you  an  1899  model 
bicycle.  Thereupon  A  pays  B.  C  refuses  to  fulfill  his  promise, 
and  A  sues  him,  alleging  the  foregoing  facts.  What  judgment 
should  be  entered  ? 

V. 

The  declaration  states  that  A  agreed  to  buy  and  B  agreed  to 
sell  and  deliver  to  him  any  ten  mares  A  might  choose  out  of  a 


sn  LAW  DKPARTMKNT  OF  THK  UNIVERSITY  OF  CINCINNATI. 

hundred  belonging  to  B  at  $100  per  head;  that  A  has  always 
been  ready  and  has  offered  to  carry  out  his  part  of  the  agreement 
and  to  pay  B  $i,oooon  delivery  of  the  mares,  but  B  has  utterly 
failed  to  deliver  them  or  any  of  them.  On  demurrer  to  the  decla- 
ration for  whom  would  you  give  judgment? 

VI. 

X  engaged  A  to  serve  him  as  cashier  for  one  year,  and  A 
agreed  to  serve  him  through  the  year.  At  the  end  of  six  months 
X  died,  and  his  executor  refused  to  continue  A  in  his  employ. 
A  was  unable  to  find  other  emplojuient  and  at  the  end  of  the 
year  sues  X's  administrator,  alleging  the  foregoing  facts.  What 
judgment  should  be  entered? 

VII. 

A  agreed  to  sell  and  B  to  buy  the  entire  product  of  14,000 
tons  of  iron  ore  to  be  manufactured  into  pig  iron  with  charcoal, 
to  be  shipped  in  vessel  cargoes  as  rapidly  as  possible  during  the 
season  of  navigation  of  1880  to  the  buyer's  mill,  such  portion 
of  the  product  as  should  be  made  after  the  close  of  navigation  of 
1880  to  be  shipped  on  the  opening  of  navigation  of  1881.  The 
entire  product  made  was  8,000  tons,  of  which  3,400  were  deliv- 
ered before  close  of  navigation  in  1880,  accepted  and  paid  for. 
By  reason  of  inability  to  obtain  sufficient  charcoal,  only  2,600  tons 
more  were  made  and  ready  for  shipment  by  the  opening  of  navi- 
gation in  1 88 1,  and  were  then  shipped;  the  remaining  2,000  tons 
were  made  and  shipped  during  the  ensuing  two  months.  B  re- 
fused to  accept  any  of  the  iron  shipped  in  1881,  and  A  sued  him, 
alleging  the  foregoing  facts.  What  judgment  should  be  entered? 

VIII. 

A  was  a  stockholder  in  the  X  corporation.  It  was  agreed  be- 
tween him  and  B  that  B  should  purchase  half  of  A' s  stock  at  par. 
that  A  should  vote  for  B  as  treasurer  of  the  company,  and  that  if 
B  should  fail  of  election  A  would  buy  back  the  stock  sold  at  par 
and  interest.  The  sale  was  made,  but  B  failed  of  election  as 
treasurer.  He  offered  the  stock  purchased  by  him,  but  A  refused 
to  accept  or  pay  for  it,  and  B  now  sues,  alleging  the  foregoing 
facts.  What  judgment  should  be  entered  ? 


ANNUAL  EXAMINATIONS,  1898-99.  81 

IX. 

A  had  a  claim  against  the  English  Government  for  damages 
inflicted  by  the  pirate  Alabama.  He  employed  B,  an  attorney,  to 
procure  an  allowance  of  the  claim,  agreeing  to  pay  him  a  percent- 
age of  what  might  be  recovered.  When  the  agreement  was  made 
the  English  Government  had  already  allowed  A's  claim,  but  of 
this  both  A  and  B  were  unaware.  Later  B  sues  A  for  his  per- 
centage, alleging  the  foregoing  facts.  What  judgment  should 
be  entered? 

X. 

A,  a  physician,  had  treated  B  for  illness.  A  sent  in  his  bill 
for  $150.  B  wrote  in  answer  that  the  bill  was  excessive,  and 
offering  to  pay  $75,  which  offer  A  declined.  Subsequently  B  sent 
A  a  check  for  $100,  enclosed  in  a  letter,  in  which  he  said:  "  In 
order  to  put  an  end  to  this  matter  I  enclose  my  check  for  $100 
in  full  payment  of  your  bill."  A  cashed  the  check  and  wrote 
to  B  that  he  had  given  him  credit  on  account  for  $100,  and  re- 
questing a  check  for  $50,  the  balance  of  his  bill.  B  refused  to 
make  any  further  payment,  and  A  sues  him,  alleging  the  services 
rendered,  placing  their  value  at  $150.  B  answers,  setting  up  as 
a  defense  the  sending  of  his  letter  and  check  and  retention  and 
collection  of  the  latter.  A  demurs  to  the  answer.  What  judg- 
ment should  be  entered  ? 


FIRST  YEAR. 

CRIMINAL  LAW. 

Mr.  Cleveland. 

GIVE    REASONS   FOR    ANSWERS. 


Unless  otherwise  indicated,  questions  are  asked  with  reference 
to  the  Common  Law. 

I. 

A  statute  was  passed  June  6,  which  provided  that  thereafter, 
on  the  trial  of  anyone  for  larceny,  the  jury  might,  if  the  facts 
proved  warranted  it.  convict  of  embezzlement  of  the  property 
charged  in  the  indictment  to  have  been  stolen.  There  was  no 
provision  that  the  act  should  not  apply  to  pending  prosecutions. 

A  had  been  indicted  June  5  for  larceny.  He  was,  in  fact, 
guilty  of  embezzlement.  On  his  trial,  which  took  place  after 
June  6,  he  was  convicted  of  embezzlement.  On  a  motion  for  a 
new  trial  the  claim  was  made  that  the  act  was  unconstitutional, 
and  also  that  in  any  event  the  conviction  was  erroneous  on  con- 
stitutional grounds. 

a.  Was  the  claim  well  founded  ? 

b.  What  constitutional  provisions  have  any  bearing  upon  the 
questions  ? 

c.  What  may  be  done  under  the  Ohio  statute  when  it  is  un- 
certain whether  or  not  the  facts  will  make  out  a  case  of  larceny 
or  embezzlement  ? 

II. 

The  defendant  was  a  lodger  in  an  inn.  In  the  night  time  he 
went  to  the  room  of  B,  another  lodger,  opened  the  door,  went  in 
and  reached  his  hand  under  B's  pillow  and  took  his  watch  and 
pocket-book  with  felonious  intent. 

a.    For  what  could  the  defendant  be  indicted  ? 

6.  Suppose  there  had  been  nothing  under  B's  pillow,  for  what 
could  he  be  indicted? 


ANNUAL  EXAMINATIONS,  1898-99.  83 

III. 

The  driver  of  a  laundry  wagon  belonging  to  A  had  the  duty 
to  take  to  and  from  A's  customers  their  laundry,  collect  the 
charges  and  turn  them  over  to  A.  Without  the  knowledge  of  A, 
in  the  course  of  his  rounds,  the  driver  collected  and  delivered 
laundry  for  B,  receiving  a  compensation  therefor  from  B,  which 
he  kept.  Of  what  crime  was  the  driver  guilty  ? 

IV. 

a.  Illustrate  the  distinction  between  intent  and  motive. 

b.  What,  if  any,  bearing  has  motive  on  the  guilt  or  innocence 
of  one  accused  t>f  crime  ? 

c.  What  is  the  difference  between  general  intent  and  specific 
intent,  actual  intent  and  constructive  intent  ? 

d.    Is  there  any  distinction  between  negligent  acts  of  omission 
and  commission  ? 

e.  On  the  trial  of  an  officer  of  a  ship  for  larceny  of  a  part  of 
a  cargo,  it  appeared  that  he  had  taken  part  of  one  consignment 
of  pig  iron;  that  there  had  been  a  custom  at  the  port  where  the 
iron  had  been  taken  for  the  officers  of  similar  vessels,  on  dis- 
charging the  cargo,  to  take  a  limited  part  thereof;  and  that  the 
officer  on  trial  had  often  done  the  same  thing  on  similar  occasions, 
and  had  taken  at  the  time  in  question  not  an  unusual  or  excessive 
quantity.  Was  the  officer  guilty  ? 

V. 

a.  What  is  the  test  of  insanity? 

b.  What  is  the  Ohio  rule  as  to  the  burden  of  proof,  when  in- 
sanity is  relied  upon  as  a  defense  to  crime  ? 

c .  A  was  indicted  for  the  murder  of  B.     The  evidence  showed 
that  A,  while  intoxicated,  had  attempted  to  shoot  himself ,  where- 
upon  B  interfered  to  prevent  A  from  accomplishing  his  purpose, 
and  in  the  struggle  which  ensued  was  accidentally  shot.     How 
would  you  charge  a  jury  on  these  facts? 

VI. 

a.  What  is  the  rule  as  to  coverture  being  a  defense  for  crime? 

b.  A  pickpocket  had  succeeded  in  taking  a  watch  from  the 


84  LAW  DKPARTMKNT  OF  THK  UNIVERSITY  OF  CINCINNATI. 

pocket  of  B.  Before  he  got  away  he  was  discovered,  and  there- 
upon dropped  the  watch  and  ran.  B  tried  to  arrest  him  and  called 
upon  him  to  stop,  and  upon  his  failure  to  do  so  shot  and  killed 
him.  Was  B's  act  criminal  ? 

c.  A,  while  attempting  to  commit  a  burglary  of  B's  house, 
was  discovered.  He  desisted,  and  being  pursued  by  B,  took 
refuge  in  his  home.  B  broke  open  the  door,  assaulted  A,  and  in 
the  struggle  which  ensued  B  was  killed.  A  was  indicted  for  mur- 
der. How  would  you  charge  a  jury? 

VII. 

a.  A,  for  the  purpose  of  defrauding  B,  procured  C,  an  inno- 
cent party,  to  sign  B's  name  to  a  promissory  note,  falsely  repre- 
senting that  C  was  authorized  by  B  to  do  so.     Of  what  crime  was 
A  guilty? 

b.  Illustrate  the  distinction  between  principals  and  accessories. 

c.  What  consequences  followed  as  to  procedure  at  Common 
Law  ?     What  is  the  Ohio  statute,  and  what  is  its  effect  ? 

d.  A  citizen  of  Germany,  one  of  the  crew  of  a  British  mer- 
chantman, lying  at  the  port  of  New  York,  committed  an  offense 
on  board  the  vessel  punishable  by  the  laws  of  New  York,  Ger- 
many, and  England.     Where  could  he  be  tried  ? 

e.  It  appeared  at  the  trial  of  an  indictment  for  attempted  rob- 
bery that  in  attempting  to  jerk  a  watch  and  chain  from  the  person 
of  A  the  defendant  had  torn  the  vest  of  A,  but  had  not  succeeded 
in  detaching  the  watch  or  chain.     A's  attention  was  thus  directed 
to  the  defendant,  and  A  seized  him  as  he  was  turning  away.  The 
defendant  knocked  A  down.  ,  What  should  be  the  verdict  of  the 
jury? 

VIII. 

i.  A  went  to  a  pawnbroker  and  represented  that  his  watch 
was  a  fine  gold  watch,  and  as  a  result  obtained  money  thereon. 
The  watch  was  in  fact  a  plated  watch,  as  A  knew.  The  pawn- 
broker believed  the  representation  to  be  true. 

a.  On  a  trial  of  an  indictment  for  obtaining  the  money  under 
false  pretenses,  can  A  offer  evidence  as  to  the  value  of  the  watch  ? 

b.  Would  A  have  been  guilty  in  any  event  had  he  not  known 


ANNUAL  EXAMINATIONS,  1898-99.  85 

what  kind  of  a  watch  it  was,  but  nevertheless  had  represented  it 
to  be  a  fine  gold  watch  ? 

2.  When  the  property  of  one  person  wrongfully  comes  into 
the  possession  of  another— 

a.  How  do  you  determine  whether  a  crime  or  only  a  tort  has 
been  committed? 

b.  If  a  crime,  by  what  tests  do  you  determine  whether  the 
crime  is  larceny,  embezzlement,  robbery,  or  obtaining  property 
by  false  pretenses  ? 

IX. 

A  was  indicted  in  Hamilton  County,  Ohio,  for  the  burglary 
of  the  house  of  B.  The  trial  developed  that  the  house  was  situ- 
ated in  Clermont  County,  Ohio,  and  A  was  acquitted.  There- 
after he  was  indicted  for  the  burglary  of  the  house  in  Clermont 
County.  He  plead  in  bar  to  the  second  indictment  his  former 
acquittal.  Was  the  plea  good  ?  Why  ? 

b.  What  is  the  Common  Law  rule  as  to  joinder  of  two  or  more 
offenses  in  one  and  the  same  indictment  ? 

c.  What  is  meant  by  counts  in  an  indictment  ?    What  purposes 
do  they  subserve. 

d.  When  an  indictment  contains  more  than  one  count,  in  what 
form  should  the  verdict  be  returned  ? 

e.  When  one  is  convicted  on  two  or  more  counts  of  an  indict- 
ment, under  what  circumstances  can  more  than  one  sentence  be 
imposed  ? 

f.  When  must  a  sentence  take  effect  ? 

g.  What  are  cumulative  sentences? 

X. 

a.  Is  there  any  statute  of  limitation  against  the  prosecution 
of  a  crime  committed  in  Ohio.     What  is  it? 

b.  When,  under  the  Ohio  procedure,  should  a  motion  to  quash 
an  indictment  be  filed?     When  a  plea  in  bar?     When  a  plea  in 
abatement,  and  when  a  demurrer? 

c.  What  defenses  may  be  raised  by  a  plea  in  bar  ? 

d.  Does  a  defendant  waive  a  defense,  which  might  be  a  bar  to 
the  prosecution,  by  not  pleading  it  in  bar,  but  going  to  trial  on  a 
plea  of  not  guilty? 


FIRST  YEAR. 

PROPERTY. 

Mr.  Herron. 


GIVE   YOfR    REASONS   FOR   ANSWERS   IN   ALL  CASKS. 
I. 

A  sells  beer  in  casks  to  X,  X  agreeing  to  return  the  casks  at 
his  expense  as  soon  as  the  beer  in  them  has  been  used.  After 
the  casks  are  empty,  X,  instead  of  returning  them  to  A,  lends 
them  to  N  to  use  for  a  float,  and  after  using  them  for  this  pur- 
pose for  a  short  time,  N  converts  them  to  his  own  use. 

a.  What  remedies,  if  any,  has  A  against  N  ? 

b.  What,  if  any,  has  X  against  N  ? 

c.  Could   either  A  or  X  maintain   replevin   for  the  casks 
against  N? 

II. 

A  owns  a  horse  in  Ohio,  where  the  statute  provides  that 
actions  for  the  recovery  of  personal  property  shall  be  brought 
within  four  years  after  cause  of  action  accrues.  The  horse  is 
wrongfully  taken  by  X  and  kept  by  him  as  his  property  a  little 
over  four  years.  X  then  takes  the  horse  to  Indiana,  where  the 
similar  statute  of  limitations  is  six  years.  Before  six  years  from 
the  original  taking  has  elapsed  the  horse  is  seized  by  a  sheriff  on 
a  judgment  against  X  and  sold  to  M.  A  sues  M,  in  Indiana,  in 
replevin.  M  sets  up,  ist,  X's  possession  of  the  horse  for  more 
than  four  years ;  2d,  the  judgment,  levy,  and  sale  in  Indiana. 

What  would  be  your  decision  on  these  two  points? 


III. 

A,  tenant  for  life,  impeachable  for  waste,  cuts  timber,  trims, 
saws,  and  cuts  it,  and  sells  it  to  X,  who  has  knowledge  of  A's 
wrong-doing.  X  uses  timber  in  part  erection  of  a  substantial 
dwelling  house.  As  the  trees  stood,  they  were  worth  $100;  as 


ANNUAL  EXAMINATIONS,  1898-99.  87 

sold  to  X,  $200;  when  finally  adjusted  in  house,  $500.  N,  the 
remainder-man  brings  trover  against  X.  Can  he  recover  at  all, 
and,  if  so,  what  is  the  measure  of  his  damages?  * 


IV. 

What  legal  estates  are  created  by  the  following : 

a.  At  common  law. 

A  feofment,  with  livery  of  seisin,  to  X,  his  heirs  and  assigns, 
to  take  effect  at  the  death  of  A. 

A  feofment  to  X,  so  long  as  he  pays  a  certain  rent  out  of  the 
land  to  N  and  his  heirs,  and  when  he  ceases  to  pay  such  rent, 
then  to  N  and  his  heirs. 

A  feofment  to  X  and  his  assigns,  but  if  X  die  before  N,  then 
to  N  and  the  heirs  male  of  his  body ;  but  if  N  dies  without  heirs 
male  of  his  body,  to  A,  B,  and  C,  their  heirs  and  assigns. 

b.  After  the  Statute  of  Uses. 

A  makes  a  bargain  and  sale  of  Blackacre  to  X  for  ten  years, 
and  subsequently  bargains  and  sells  the  same  property  to  N,  his 
heirs  and  assigns,  to  the  use  of  M  for  life,  remainder  to  the  first 
one  of  M's  sons  who  reaches  21.  X  never  attorns  to  N  or  M. 

A  makes  a  grant  of  Blackacre  to  his  eldest  son  N,  to  take 
effect  at  the  death  of  A;  but  if  N  shall  become  bankrupt,  then 
to  A's  second  son,  M,  and  his  heirs. 


V. 

A,  being  lessee  for  years  of  certain  premises,  erects  a  factory 
thereon,  and  gives  a  mortgage  upon  all  his  estate,  title,  and  inter- 
est in  the  premises  to  a  building  association.  Subsequently  he 
equips  the  factory  with  a  boiler,  engine,  shafting,  and  certain 
machinery  fastened  to  the  floor  simply  to  steady  it,  and  executes 
a  chattel  mortgage  to  the  vendor,  X,  on  these  various  articles. 
He  subsequently  assigns  all  his  property,  real  and  personal,  to  N 
for  the  benefit  of  his  creditors,  and  thereupon  his  landlord,  M, 
distrains  upon  the  boiler,  etc.,  for  arrears  of  rent.  Which  one 
of  these  parties,  in  your  judgment,  i»  entitled  to  the  boiler,  en- 
gine, shafting  and  machinery? 


88  LAW  DEPARTMENT  OF  THK  UNIVERSITY  OF  CINCINNATI. 

VI. 

A  petition  in  trespass  on  the  case  alleges  that  the  plaintiff,  A, 
is  the  owner  of  a  dwelling-house  in  Cincinnati ;  and  that  the 
defendant,  X,  carries  on,  near  to  plaintiff's  dwelling,  a  slaughter- 
house, and  that  the  odors  arising  therefrom  are  offensive  and 
noxious  and  detrimental  to  the  health  of  the  plaintiff  and  his 
family.  The  answer  alleges  that  the  defendant  had  carried  on 
the  same  business  at  the  same  place  for  many  years  before  the 
plaintiff  built  his  house  ;  that  it  is  a  business  essential  to  the  well- 
being  of  the  people  of  the  city ;  that  it  is  carried  on  by  the  de- 
fendant in  a  reasonable  and  proper  manner,  with  as  little  offense 
as  possible,  considering  the  nature  of  the  business.  To  this  an- 
swer a  demurrer  is  filed.  For  whom  would  you  give  judgment  ? 


VII. 

A  and  X  lay  out  a  private  way  for  their  use  and  that  of  their 
tenants  across  their  property  to  a  highway,  with  a  gate  at  the 
intersection  of  the  way  and  the  highway.  Subsequently  another 
highway  is  laid  out  bisecting  the  private  way,  and  the  public,  in 
consequence,  frequently  intrude  on  the  way.  Thereupon  A 
builds  gates  on  the  way  where  it  abuts  on  the  new  highway. 
The  soil  at  both  these  points  belongs  to  A.  Thereupon  X  files  a 
bill  to  compel  A  to  remove  the  gates  and  to  restrain  him  from 
obstructing  the  way  at  these  points.  For  whom  would  you  give 
judgment? 

VIII. 

A,  for  a  valuable  consideration,  grants  X  a  parol  license  to 
construct  an  aqueduct  over  his  land  for  the  convenience  of  X's 
lot.  No  special  time  is  mentioned  in  the  license.  Thereupon  X 
constructs  the  aqueduct  of  tiles,  at  a  comparatively  slight  cost. 
Subsequently  A,  desiring  to  build  upon  his  lot,  excavates,  and 
thus  disturbs  the  aqueduct.  Thereupon  X  files  a  bill  for  an  in- 
junction, and  to  have  his  right  to  the  aqueduct  established.  Will 
the  bill  lie? 

Suppose  a  mere  stranger,  N,  tears  up  the  aqueduct,  could  X 
maintain  an  action  of  trespass  against  him? 


ANNUAL  EXAMINATIONS,  1K98-5H).  89 

IX. 

A  grants  land  on  a  certain  street  to  X,  and  X  covenants  for 
himself  and  his  heirs  with  A,  his  executors  and  administrators 
and  assigns,  that  he  will  not  build  a  house  within  fifty  feet  of  the 
curb.  Subsequently  A  grants  other  land  on  the  same  street  to  N 
with  like  covenants,  and  continues  thus  to  sell  lots  on  the  street 
till  he  has  sold  all  his  propert)'  on  the  street.  There  is  no  other 
evidence  of  a  general  building  plan.  N  sells  his  lot  to  M,  who 
has  knowledge  of  the  restrictive  covenants  in  the  various  deeds 
from  A,  but  nevertheless  begins  the  erection  of  a  house  within 
fifty  feet  of  the  curb.  Can  X  maintain  a  bill  to  restrain  M,  and 
if  so,  on  what  principle? 

Can  he  maintain  an  action  in  covenant  for  damages  against  M  ? 

X. 

A  bargains  and  sells  land  to  X  and  his  heirs,  reserving  a  rent 
charge  to  himself  and  his  heirs,  and  X  covenants  for  himself,  his 
heirs  and  assigns  with  A,  his  heirs,  executors,  administrators, 
and  assigns  to  pay  the  rent  as  reserved.  A  devises  the  rent  to 
his  two  children,  M  and  N.  X  sells  the  land  to  Y.  What  reme- 
dies for  collection  of  the  rent  have  M  and  N  against  X  and  Y? 


FIRST  YEAR. 

TORTS. 

Judge  Harmon. 

STATE    BRIEFLY   YOUR    REASONS   FOR    EACH   ANSWER,  EXCEPT   TO  I  AND  X. 


I. 

What  are  Torts  ? 

II. 

The  owner  of  three  horses  sent  them  to  a  pasturer  who  was 
compelled  to  kill  one  of  them,  which  had  taken  a  contagious  dis- 
ease, to  save  the  others,  and  delivered  another  to  a  man  who  pre- 
sented proofs  of  ownership  which  the  pasturer  in  good  faith  be- 
lieved, though  they  were  false.  The  third  was  seized  by  a  constable, 
who  produced  a  writ  of  attachment  against  the  owner,  and  to 
whom  the  pasturer  pointed  out  the  horse  in  response  to  an  in- 
quiry. The  constable  had  no  knowledge,  except  that  the  owner 
sometimes  sent  animals  to  that  place. 

The  owner  asks  what  remedies  he  has,  against  whom,  and 
what  steps,  if  any,  he  must  take  before  suit?  Your  answer? 


III. 

A  client  seeks  your  aid  against  A,  B,  and  C,  each  of  whom  has 
caused  his  arrest  and  prosecution  on  a  false  charge  of  crime.  He 
says  his  proof  will  be  as  follows : 

A  acted  on  what  he  believed  to  be  reliable  information,  which, 
if  true,  would  have  justified  the  prosecution,  but  which  came 
from  a  secret  enemy  of  the  accused ;  A's  sole  motive,  however 
was  to  compel  the  client  to  pay  him  a  disputed  claim.  The 
client  was  tried  and  acquitted. 

B  acted  on  information  which  no  man  of  common  prudence 
would  have  considered  sufficient,  but  nevertheless  honestly 
believed  the  client  guilty  of  the  crime  charged,  and  had  no  object 
but  to  bring  him  to  justice.  The  prosecution  had  been  dismissed. 


ANNUAL  EXAMINATIONS,  1898-1)9.  91 

C  had  no  reasonable  ground  to  believe  the  client  guilty,  did 
not  believe  him  guilty,  and  acted  from  business  jealousy  only. 
Becoming  alarmed.  C  had  retracted  the  charge  and  sent  the  client 
a  letter  from  the  State's  attorney  promising  to  dismiss  the  prose- 
cution at  the  next  session  of  the  court.  Your  advice  ? 


IV. 

A  and  B  were  racing  horses  in  a  city  street,  contrary  to  a 
statute  which  forbade  the  use  of  streets  for  such  purpose.  A 
purposely  ran  into  B,  injuring  him,  and  also  negligently  drove 
against  and  injured  C's  horse  and  wagon,  which  he  had  carelessly 
left  standing  across  the  street,  contrary  to  an  ordinance.  A  was 
then,  during  the  race,  himself  injured  by  his  horse  falling  into  a 
hole  in  the  street  caused  by  negligence  of  the  city.  A  is  sued  by 
B  and  by  C  and  wishes  to  sue  the  city. 

What  is  your  advice  in  each  case? 


V. 

The  following  facts  appearing  in  actions  for  deceit,  tried 
before  you  as  referee,  what  is  your  judgment  in  each? 

A  has  been  deceived,  in  buying  a  farm  near  by,  by  the  false 
and  fraudulent  statement  of  the  seller  that  it  was  one  of  the  best 
farms  in  the  county ;  that  the  soil  was  excellent,  easily  cultivated, 
and  adapted  to  diversity  of  crops.  The  farm  was,  in  fact,  poor 
and  worn  out  and  would  not  repay  cultivation,  as  the  seller 
well  knew. 

B  had  bought  a  horse,  relying  on  the  statement  of  the  seller 
that  it  was  gentle  and  safe.  The  seller  in  fact  knew  nothing 
about  the  horse,  having  merely  repeated  to  B,  in  good  faith,  the 
representation  on  which  he  had  himself  just  bought  it,  but  he  did 
not  so  inform  B.  The  horse  was  really  vicious  and  unsafe. 

C,  having  refused  credit  to  a  stranger,  was  induced  to  give  it 
by  his  production  of  a  letter  from  a  well-known  man  to  D,  assur- 
ing D  that  the  stranger,  who  expected  to  have  dealings  with  him, 
was  honest  and  responsible.  This  statement  was  false  and 
fraudulent,  as  the  writer,  who  was  sued,  well  knew.  • 


92  LAW  DEPARTMENT  OF  THE  UNIVERSITY  or  CINCINNATI. 

VI. 

A  lets  B,  whom  he  overtakes,  ride  in  the  rear  of  the  covered 
wagon  A  is  driving.  While  crossing  a  railroad  track,  both  A 
and  B  are  injured  by  a  train  through  the  carelessness  of  the 
engineer  in  failing  to  give  warning  of  its  approach,  and  the  con- 
curring carelessness  of  A  in  failing  to  look  and  listen  before 
attempting  to  cross. 

What  should  be  the  result  of  separate  suits  by  A  and  B  against 
the  railroad  company  ? 

What  difference,  if  any,  would  there  be  if  A  were  driving  an 
omnibus  and  B  were  a  passenger,  or  if  B  owned  the  wagon  and 
had  hired  A  to  drive  it  for  him? 

VII. 

A  minor,  not  known  to  be  such  by  a  merchant,  ordered  goods, 
which  were  sent  to  his  residence  with  a  bill,  which,  when  the 
goods  were  handed  him,  he  said  he  would  pay  next  day.  On 
the  demand  of  the  messenger  for  the  return  of  the  goods  an 
affray  ensued,  during  which  the  minor  wounded  the  messenger 
and  also  destroyed  the  goods. 

To  what  actions,  if  any,  is  the  minor  liable? 

VIII. 

A,  B,  and  C,  acting  in  concert,  appeared  before  D's  house 
armed,  and  forbade  him  to  leave  it.  Arming  himself,  he  at  once 
went  out,  but  was  not  molested.  To  what  action,  if  any,  are  A, 
B,  and  C  liable? 

If  you  say  they  are  liable,  then  suppose  D  brings  separate 
actions  against  them,  declaring  as  above. 

A  pleads  in  abatement  the  failure  to  join  B  and  C. 

B  pleads  a  recovery  of  judgment  by  D  in  the  action  against  C. 

C  pleads  that  D  had  received  from  A  his  note  for  $100,  for 
which  D  had  given  A  an  individual  release  in  which  he  expressly 
reserved  his  rights  against  the  others? 

What  do  you  decide  on  demurrer  to  each  plea  ? 

« 

IX. 
The  owner  of  an  apartment  house,  the  halls  and  stairways  of 


ANNUAL  EXAMINATIONS,  1898-iK).  93 

which  remained  under  his  control,  is  sued  by  three  persons  who 
were  injured  by  their  defective  condition,  due  to  his  negligence 
in  failing  to  repair. 

The  first,  when  injured,  was  going  to  the  rooms  of  a  tenant, 
with  whom  he  had  business. 

The  second  was  passing  through  the  building  to  reach  his 
own  house,  as  he  was  in  the  habit  of  doing,  with  the  owner's 
knowledge  and  consent. 

The  third,  a  constable,  had  entered  in  order  to  serve  a  sub- 
poena on  the  owner  in  his  own  apartments,  but  finding  them  open 
and  no  one  present  had  helped  himself  to  refreshments  on  the 
sideboard. 

Can  these  persons,  or  any  of  them,  reco'ver  damages  from  the 
owner? 

X. 

What  is  the  rule  relative  to  proximate  and  remote  cause  ? 

What  is  the  test  whether  a  wrongful  act  or  omission  is  or  is 
not  the  proximate  cause  of  an  injury  ? 

Give  an  instance  where  such  act  or  omission  is  such  proxi- 
mate cause,  and  one  where  it  is  the  remote  cause. 


FIRST  YEAR. 

CIVIL  PROCEDURE  AT  COMMON  LAW. 

Mr.  Hepburn. 


Stale  briefly,  but  clearly ',  your  reasons  in  all  answers  except 
those  to  questions  Nos,  IV,  VIII,  XII-XVI. 

1. 
• 
What  form  or  forms  of  action  lay  at  Common  Law  in  each  of 

the  following  cases: 

a.  P  lends  an  oil  painting  to  D,  to  be  returned  after  a  certain 
exhibition.    The  exhibition  over,  D  refuses  to  return  the  painting. 
The  next  day,  and  while  thus  in    D's   possession,   the  painting 
is  destroyed  by  fire. 

b.  To  secure  D,  in  going  on  his  bond,  P  deposited  with  him 
certain  certificates  of  stock,  the  property  of  P,  to  be  returned  on 
demand  after  the  discharge  of  the  bond.     The  bond  having  been 
discharged,  P  demands  the  return  of  the  certificates.     D  refuses 
to  return  them.     The  stock  is  increasing  in  value. 

c .  D  carelessly  threw  a  log  of  wood  over  a  hedge  into  a  high- 
way.    As  it  falls,  the  log  strikes  P,  who  is  walking  along  the 
highway. 

d.  D  throws  a  log  into  a  highway  and  leaves  it  lying  there. 
P  accidentally  stumbles  over  it  and  is  hurt. 

e.  In  consideration  of  P's  promise  to  serve  him  for  a  month, 
D  promises  P  to  give  him,  on  the  expiration  of  the  month,  notes 
of  the  Eureka  National  Bank  of  the  face  value  of  $500.     P  per- 
forms his  part  of  the  contract,  but  D  then  refuses  to  give  him  the 
bank  notes. 

II. 

Debt  for  price  of  a  horse  alleged  to  be  sold  defendant  by  plain- 
tiff. Plea,  "  that  defendant  never  bought  a  horse  of  plaintiff." 
What  objection,  if  any? 


ANNUAL  EXAMINATIONS,  1898-99.  95 

III. 

P  vs.  D.  Assumpsit.  The  declaration  alleged  an  agreement 
between  D  and  H  to  submit  to  arbitration  certain  disputes  touch- 
ing a  partnership,  one  term  of  the  agreement  being  that  D  should 
assume  all  the  debts  of  the  partnership.  It  was  then  averred  that 
there  was  due  from  said  partnership  to  P  a  debt  of  $125  ;  that 
this  debt  was  submitted  to  said  arbitrators,  and  that  the  defendant — 

"now  owes  to  plaintiff  the  said  $125,  under  the  terms  of, said  agreement, 
and  is  by  law  bound  to  pay  the  same  to  this  plaintiff." 

General  demurrer  to  this.     Shall  the  demurrer  be  sustained? 

IV. 

a.  Explain  briefly  the  difference  between  the  General  and 
the  Special  Demurrer. 

b.  Give  briefly  the  history  of  the  Special  Demurrer  in  Eng- 
lish law. 

V. 

P  vs.  D.  Assumpsit  for  unpaid  installments  due  on  subscrip- 
tions to  the  capital  stock  of  the  A  &  B  Railway  Company.  The 
declaration  is  defective  in  substance,  but  the  defendant,  instead 
of  demurring,  pleads  1.  Non-assumpsit ;  2.  Nul  tiel  corporation. 
Issue  on  first  plea;  replication  as  to  the  second.  Demurrer  to 
the  replication.  The  replication,  however,  is  good  in  substance. 
For  whom  should  judgment  be  rendered  ? 

VI. 

Debt  on  a  bond  conditioned  for  the  payment  of  $500.  Plea, 
that  $400  of  the  sum  mentioned  in  the  condition  of  the  bond  was 
won  at  gaming,  contrary  to  the  statute,  per  quod  the  whole  bond 
was  void.  Replication,  traversing  that  $400  was  won  at  gaming. 
General  Demurrer.  Shall  the  demurrer  be  sustained  ? 


VII. 

Detinue  for  a  horse ;  plea,  traversing  the  delivery  of  the  horse 
to  the  defendant ;    demurrer.     Shall  the  demurrer  be  sustained  ? 


90  LAW  DEPARTMENT  OF  THE  UNIVERSITY  OP  CINCINNATI. 

VIII. 

Explain  briefly  what  was  meant  by  a  new  assignment  in  com- 
mon law  pleading. 

IX. 

Replevin  for  plaintiff's  lime-kiln,  alleged  to  have  been  wrong- 
fully taken  by  defendant.  Avowry,  that  the  lime-kiln  was  taken 
for  rent  in  arrear.  Plea,  that  the  lime-kiln  before  and  at  the 
time  it  was  thus  taken  was  affixed  to  the  freehold,  and  as  such 
was  not  subject  to  distress  for  rent,  as  in  the  avowry  alleged. 
Demurrer.  Shall  the  demurrer  be  sustained? 

X. 

Assnmpsit  for  goods  sold.  The  declaration  alleges  a  promise 
as  made  January  16,  1706.  Plea,  that  the  action  had  not  accrued 
within  six  years.  Replication,  that  the  action  was  brought  Jan- 
uary 23,  1713,  and  that  the  cause  of  action  accrued  within  six 
years  before.  General  demurrer.  Shall  it  be  sustained? 

XI. 

Trespass  for  breaking  plaintiffs  close  and  cutting  down  300 
trees.  The  plea  sets  up  matter  of  justification  as  to  200  trees,  but 
does  not  attempt  to  say  anything  as  to  the  remainder.  The  plain- 
tiff demurs.  What  is  the  effect  ? 

XII. 
For  what  did  Replevin  originally  lie? 

XIII. 
What  was  the  original  nature  of  ejectment? 

XIV. 

Explain  briefly  the  use  of  different  counts  in  a  declaration. 

XV. 

a.  What  was  the  common  law  rule  as  to  pleading  several 
matters  to  the  same  subject  of  complaint  ? 

b.  When  was  it  altered  by  statute? 


ANNUAL  EXAMINATIONS,  18<).S-9i».  «i? 

XVI. 

Explain  briefly  and  illustrate  the  rule  that  "  it  is  not  necessary 
to  state  matter  which  would  come  more  properly  from  the  other 
side." 

XVII. 

a.  Was  it  necessary  in  a  declaration  to  allege  that  a  promise 
to  answer  for  the  debt,  default,  or  miscarriage  of  another  was  in 
writing? 

b.     Was  it  necessary  in  a  declaration  to  allege  that  a  will  of 
real  property  was  in  writing? 

XIX. 

Trespass  for  driving  a  cart  against  plaintiff's  buggy  and  wreck- 
ing it  on  the  highway.  Plea,  "  not  guilty."  Can  defendant  show 
that  while  he  did  drive  against  and  wreck  the  buggy,  it  was  due 
to  mere  accident,  without  any  default  on  his  part? 

XX. 

The  formal  commencement  and  the  formal  conclusion  of  a 
plea  were  those  of  a  plea  in  bar;  the  matter  of  the  plea  was  suffi- 
cient only  to  abate  the  writ.  What  was  the  effect  at  Common 
Law,  and  why? 


LAW  LIBRARY 
UNIVERSITY  OF  CALIFORNIA 


